141 N.E. 911 | NY | 1923
Lead Opinion
Alfred Blumenthal and Hannah Blumenthal, his wife, were the owners as tenants by the entirety of the premises known as Nos. 503-505 West One Hundred and Eleventh street in the borongh of Manhattan, city of New York. They sold the premises, taking back from the purchaser a bond and mortgage executed to Alfred Blumenthal and Hannah Blumenthal, his wife. Thereafter and while the said Alfred Blumenthal and his wife were still the owners and holders of said bond and mortgage, Alfred Blumenthal died on or about the 12th day of June, 1921, and Hannah, his wife, died shortly thereafter on or about the 24th day of June, 1921. It is said that both died as the result of injuries sustained in a railroad accident in Spain.
A question has arisen regarding the ownership of this purchase-money bond and mortgage. If the bond and mortgage are to be treated as a substitute for the real estate and as being held by the parties like an estate by *451 the entirety or in joint tenancy, then Hannah Blumenthal as the survivor and her estate since her death is the sole owner of the securities and entitled to possession thereof. On the other hand, if the bond and mortgage are to be treated like any other bond and mortgage, the execution of the bond and mortgage to Alfred Blumenthal and Hannah Blumenthal, his wife, amounted to an ownership in common and each owned one-half of the amount of the security. Upon the death of either the half would pass to his or her estate. There was no mention in the bond and mortgage that the security was to be held in joint tenancy.
The executors of Hannah Blumenthal's estate brought proceedings before the surrogate against the executors of Alfred Blumenthal's estate to compel them to turn over to the petitioners the bond and mortgage, claiming that Hannah as survivor was the sole owner thereof. The learned surrogate and the Appellate Division, on appeal, were of the opinion that the petitioners were right and cited Matter of Kennedy (
The intention of the husband is the thing to be looked for. When he takes the title out of his own name and shares it with his wife, it has been said that this evidences an intention that she shall take by survivorship. (See cases cited in KennedyCase, supra.) The presumption does not apply to one not a wife. (Matter of Bolin,
So in this case of the estate by the entirety, the real estate was sold, the estate ended and in its place we find a purchase-money mortgage in the name of husband and wife without knowing whose money it represents. The furthest a reasonable presumption will carry us is that each owns one-half. This is just what the statute says.
Section 66 of the Real Property Law (Consol. Laws, ch. 50) reads: "Every estate granted or devised to two or more persons in their own right shall be a tenancy in common, unless expressly declared to be in joint tenancy; but every estate, vested in executors or trustees as such, shall be held by them in joint tenancy." This applies also to personal property. (Matter ofKimberly,
The real property which Alfred Blumenthal and Hannah Blumenthal, his wife, owned, was deeded away by them. It was sold. It was conveyed by a deed passing title in *454
fee. By the deed all the interest which Blumenthal and his wife had in the real property completely passed out of it. Their interest in the real property ceased to exist. Their tenancy by the entirety came to an end. They took back as part of the purchase price a bond and mortgage. That the mortgage given to secure the bond happened to be a purchase-money mortgage or a mortgage upon the property which they had conveyed is a mere incident. They might have taken a mortgage upon any other piece of property. The ownership which they had in the bond and mortgage was not dependent upon the piece of property that was given as security but upon the wording of the instrument. A mortgage is merely a chose in action and personal property. (Matter of Albrecht,
This is all we have. There is nothing else to indicate the intention of the parties except these words. Under these circumstances the bond and mortgage were held in common and the husband and wife had an equal share or ownership therein.
The orders of the Appellate Division and the surrogate must be reversed and the petition dismissed, with costs.
Dissenting Opinion
Alfred and Hannah Blumenthal were husband and wife. Alfred died on June 12, 1921, and Hannah twelve days later. Each left a last will and testament, which have been admitted to probate and letters testamentary issued to the executors therein named. During their lifetime they owned certain real estate in the city of New York as tenants by the entirety, which they sold, taking in payment a bond of the purchaser, the payment of which was secured by a purchase-money mortgage. The purchase price of the *455 real estate was made payable by the terms of the bond and mortgage to Alfred Blumenthal and Hannah Blumenthal, his wife. At the time of Alfred's death the bond and mortgage were in his possession and since his death the same have been retained by his executors, they refusing to turn the same over to the executors of Hannah. This proceeding was instituted to compel such delivery. The surrogate found, upon facts which were not disputed, that the bond and mortgage belonged to Hannah, she having survived the death of her husband, and directed his executors to deliver the same to her executors. On appeal to the Appellate Division the order was unanimously affirmed. The appeal to this court is by permission.
I am of the opinion that Hannah, having survived the death of her husband, thereby became the owner of the bond and mortgage. This conclusion, it seems to me, is sustained by the great weight of authority in this country and in England. (See George v.Dutton, 8 Am. Law Rep. Ann. 1014, note, p. 1017, and authorities there cited.)
In reaching this conclusion I am not unmindful of the fact that this court has held that the law does not recognize such a thing as tenancy by the entirety in personal property. (Matter ofAlbrecht,
It has been held that where a husband deposits money in a savings bank in the name of himself and wife, the presumption is, in the absence of evidence to the contrary, that he intended to confer upon her the right of survivorship, even though he never delivered the bank books to her and made certain withdrawals from the account. (West v. McCullough,
The same presumption prevails where a husband purchases securities with his own funds and takes title thereto in the names of himself and wife. (Matter of Kaupper,
Nor have I been able to find any authority in this state to the contrary, except Matter of Baum (
The title to the real estate was held by the husband and wife as tenants by the entirety. The presumption is, if a presumption is to be indulged in, that both contributed towards its purchase. The mortgage took the place of the real estate and on the death of either mortgagee passed to the survivor, as the real estate which it replaced would have done. (Matter of Kennedy, *457
I, therefore, dissent from the decision about to be made and vote to affirm the order appealed from.
HOGAN, CARDOZO, POUND and ANDREWS, JJ., concur with CRANE, J.; McLAUGHLIN, J., reads dissenting opinion, with whom HISCOCK, Ch. J., concurs.
Orders reversed, etc.