281 A.D. 202 | N.Y. App. Div. | 1953
Lead Opinion
Prior to April 11, 1951, there was $44,864 on deposit in the Syracuse Trust Company to the credit and in the account of Horace K. Hitchings estate. The ledger sheet for that month, in the heading, recited: “ Released to Ethel C. Hitchings, Executrix Dec. 1, 1950.” From December 1, 1950, to April 11, 1951, Ethel C. Hitchings, the executrix, had made many deposits in and many withdrawals from the account
We have examined into the claims of the parties on the merits and we think we may not determine the same but must dismiss the proceeding upon the ground that the Surrogate’s Court was without jurisdiction to entertain it. The jurisdictional question was not raised either before the Surrogate or upon this appeal. That fact, however, does not prevent this court from inquiring into the authority of the Surrogate’s Court to proceed under sections 205 and 206 of the Surrogate’s Court Act. If the subject matter was not within the jurisdiction of the Surrogate’s Court, the order made was a nullity- (Matter of Walker, 136 N. Y. 20; Chemung Canal Bank v. Judson, 8 N. Y. 254.) This court, in Matter of Mathewson (210 App. Div. 572), cited Matter of Walker (supra) and said: “ Jurisdiction cannot be acquired by acquiescence. * * * And in such circumstances it is our duty to dismiss the proceeding.”
The executrix became a depositor of the bank on December 1, 1950, and thereafter and until April 11, 1951, made deposits and withdrawals from the account in the usual manner. The relationship between the bank and Ethel C. Hitchings, the executrix, was that of debtor and creditor. (People ex rel. Bridgeport Sav. Bank v. Barker, 154 N. Y. 128, 130.) The bank’s contract was to pay the depositor upon demand. Upon refusal to do so, the bank was liable to an action at law to collect the deposit and could interpose such defenses, legal or equitable,
In the case now before us, the executrix was not seeking discovery of property belonging to the testator and which was withheld. There was no property in the name of the decedent which should, by order, be delivered to the executrix. The executrix, herself, was the depositor and creditor of the bank. The money which had been in the name of the testator had already been delivered to her on December 1, 1950, and she had added to the account from other sources of income of the estate. On April 11, 1951, when the bank appropriated the balance to the credit of the executrix, the amount which the bank owed her was definite. There was no need of a discovery proceeding. It is our opinion that in a situation such as is here presented, discovery may not be had to collect the debt owing by the bank to the executrix; that there was no jurisdiction in the Surrogate’s Court to entertain the proceeding under sections 205 and 206 of the Surrogate’s Court Act.
The order should be reversed and the proceeding dismissed.
Dissenting Opinion
(dissenting). Court decisions to the effect that the Surrogate’s Court is without jurisdiction to enforce a claim on behalf of a representative of an estate against a bank for moneys on deposit in the name of a decedent are not, in my opinion, controlling here.
In this case the bank account prior to the transfer of the balance thereof to the bank, was in the name of the executrix. She must eventually account for it. When the bank on April 11, 1951, transferred to itself the entire balance on deposit to the credit of the executrix it acted upon the theory that because of certain underlying facts it became the owner of the fund and
Sections 205 and 206 of the Surrogate’s Court Act by the terms thereof establish a procedure by which the representative of an estate may apply to the Surrogate’s Court for a determination of title and right to possession of money or other personal property as against one claiming such title or right to possession. (See Matter of Ort, 217 App. Div. 422, 424; Matter of Akin, 248 N. Y. 202; Matter of Wilson, 252 N. Y. 155, and Matter of Jacobsen, 178 Misc. 479.)
The bank’s claim of ownership is inconsistent with and does not rest upon the debtor-creditor relationship. The bank deposit. is no longer in existence and the claim of the executrix is that the bank transferred to itself from the bank deposit, and now holds in its individual capacity, property belonging to the estate and that she is entitled to the possession thereof.
In my view of it, the Surrogate’s Court possessed jurisdiction to entertain the proceeding, determine the issues and make a decree thereon. We should accordingly determine the appeal upon the merits. I therefore dissent from the decision which is being made.
All concur except McCtjrh, J., who dissents in a separate opinion. Present — Taylor, P. J., McCttrk, Kimball, Piper and Wheeler, JJ.
Order reversed on the law, with costs to the appellant payable out of the estate and proceeding dismissed.