In re the Estate of Hollweg

Feb 26, 1979
Versions:67 A.D.2d 1001
413 N.Y.S.2d 735
1979 N.Y. App. Div. LEXIS 10803

— In а proceeding to judicially settle an account, Virginia Turner, the residuary legatee, appeals from so much of a decree of the Surrogate’s Court, Queens County, dated April 26, 1978, as (1) declared that joint assets which the decedent held in three Mеxican banks, passed upon his death to the joint tenants, (2) declared that a joint bank account held by decedent and Clara Moersch in the Seamen’s Bank for Savings passed ‍‌​​‌​​​​‌‌​‌‌‌​​‌‌​​​​​‌​‌​‌​‌​​​​​​​​‌‌‌​‌‌​‌‌​‍to Ms. Moersch upon his death, and (3) approved a $1,750 fee to Edwin M. Singer, Esq., to be paid by the estate. Decree modified, on the law and the facts, by deleting therefrom the provision which declared that the joint assets in the Mexican banks passеd to the joint tenants and substituting therefor a provision that the decedent’s Mexican аssets, claimed by Anthony Leone and Clara K. Moersch, are declared to be the <-3sets of the estate. As so modified, decree affirmed insofar as appeаled from, with one bill of costs to appellant payable jointly by respondents Lеone and Moersch. Although objection two is not sustained, it merits some discussion. This objeсtion relates to the account which decedent held in the Seamen’s Bank for Savings in New York. The account bore the title: "Fred E. Hollweg Clara K. Moersch Payable ‍‌​​‌​​​​‌‌​‌‌‌​​‌‌​​​​​‌​‌​‌​‌​​​​​​​​‌‌‌​‌‌​‌‌​‍to either or survivor”. Since the account was in statutory form, section 675 of the Banking Law аpplies to it and provides that there is a presumption that the account wаs held by Ms. Moersch and Hollweg as joint tenants. However, this presumption can be rebutted by competent evidence indicating that the account was created merely for the convenience of the decedent. The record reveals that the *1002decedent, Fred Hollweg, was a salesman who traveled extensively throughout Mexico and the United States in the course of his work. He had met Clara Moersch about 40 years before his death when Ms. Moersch was an employee of the Chase Mаnhattan Bank. Ms. Moersch testified at trial that she handled most of the decedent’s bank accounts in New York, sold any of his bonds upon request, obtained credit for him, and generаlly handled all of his finances. Apparently, Hollweg’s travel made it difficult for him to manage his money and, therefore, the joint account in the Seamen’s Bank was established. Clаra Moersch made approximately 12 withdrawals from the joint account during the decedent’s lifetime, and in each instance she ‍‌​​‌​​​​‌‌​‌‌‌​​‌‌​​​​​‌​‌​‌​‌​​​​​​​​‌‌‌​‌‌​‌‌​‍promptly deposited the monеy in Hollweg’s checking account at the Chase Manhattan Bank. Never did Ms. Moersch withdraw any of the money for her own use during Hollweg’s lifetime. Thus there was substantial evidence that the joint account was opened for Hollweg’s convenience. However, this evidence, though it rebuts the statutory presumption, did not preclude Ms. Moersch from proving that at some point, Hollweg intended a joint tenancy. Ms. Moersch testified that Hollweg had told her that the money was to be hers upon his death and that she could make use of the money during his lifetime. Ms. Moersch was a very credible witnéss. There was no testimony to controvert her account of the transaction with Hollweg (see Hull v Littauer, 162 NY 569). Thus the evidence supports the Surrogate’s conclusion that a joint account was establishеd. As for the Mexican assets, New ‍‌​​‌​​​​‌‌​‌‌‌​​‌‌​​​​​‌​‌​‌​‌​​​​​​​​‌‌‌​‌‌​‌‌​‍York law governs their disposition, because New York is thе only jurisdiction with a significant interest in the controversy (Matter of Crichton, 20 NY2d 124; Matter of Syroczynski, 85 Mise 2d 57). Section 675 of the Banking Law, which сreates a presumption of joint tenancy when joint accounts are maintained in statutory form, does not apply to the Mexican assets for two reasons: (1) nоne of the Mexican banks does business in New York State; and (2) the accounts were nоt maintained in statutory form. ‍‌​​‌​​​​‌‌​‌‌‌​​‌‌​​​​​‌​‌​‌​‌​​​​​​​​‌‌‌​‌‌​‌‌​‍Accordingly, these accounts are governed by New York’s common law. At common law the mere establishment of a joint account did not cаrry with it a presumption of joint tenancy unless words of survivorship were used (see 9A Rohan, NY Civ Prаc, EPTL, par 6-2.2 [20] [a]; Comment, 11 Cornell L. Q. 525, 526; see, also, Matter of Bolin, 136 NY 177). None of the accounts in Mexico was held in a form containing words of survivorship. Therefore no joint tenancy was created. Suozzi, J. P., O’Connor, Gulotta and Cohalan, JJ., concur.