19 N.E.2d 671 | NY | 1939
Prior to February 3, 1937, Alwin Juedel had on deposit with the Lincoln Savings Bank of Brooklyn, $5,278.52 in an account standing in his own name. On that date the deposit was transferred by the bank to a new account in the name of Mr. Juedel and his daughter, Doris Harmon, "for either or survivor."
Mr. Juedel died December 25, 1937. This proceeding was brought by his executor to compel discovery of $5,000 which in the preceding April had been withdrawn from the joint account by Doris Harmon. (See Surr. Ct. Act, §§ 205, 206.) George I. Harmon, the husband of Doris, was made a respondent with her, she having redeposited $2,500 of that sum in her name as trustee for him.
Subdivision 3 of section
These provisions are part of article VI of the statute which relates to savings banks. (Cf. § 134, subd. 3.) The effect thereof is to affix to a savings bank account, when opened in the form so prescribed, a presumption that the interest of the depositors is that of joint tenants. "Upon the death of one of the depositors, this presumption becomes conclusive in favor of the survivor in respect of any moneys then left in the account. It continues to be a mere presumption in respect of any moneys previously withdrawn." (Marrow v. Moskowitz,
In their answer to the executor's petition, the respondents asserted ownership of the entire deposit "by reason of the fact that on or about February 3rd, 1937, the deceased, Alwin Juedel, opened a joint account in his own name and the name of the respondent Doris Harmon in the Lincoln Savings Bank;" and Doris Harmon thereby alleged "that the account was opened for the purpose of making a gift to her in the sum of $5,278.52." The executor introduced evidence that when the testator's will was read to his four children, Doris Harmon said: "Well, there is another account in the Lincoln Savings Bank for $5,300, $5,000 of which is a gift from father to George and I. It was put in a joint account in February. He put it in our names and he said that if anything happened he wanted me and George to have the money, so when I heard he was going to die, I opened a joint account in George's name and mine." No evidence was offered by the respondents. *41
They were directed by the Surrogate to pay over to the executor the original amount of the joint account. His decree recites the absence of proof of any gift to Doris Harmon and his conclusion that the testator never intended to create a joint account between himself and her. On appeal by the respondents, the Appellate Division reversed the Surrogate on the law and dismissed this proceeding on the ground that nothing in the record justified an inference that the joint account was not what in fact it purported to be. The controversy is now before us on appeal by the executor.
No attempt is made to sustain the Surrogate's award to the estate of the moneys that were left in the account at the testator's death. Concededly the statutory presumption that Doris Harmon was a joint tenant with the testator then became conclusive in her favor in respect of the balance undrawn, with the result that she was at all events entitled thereto as survivor.
As to the $5,000 withdrawal: In its memorandum the Appellate Division said there was no proof at all respecting the manner in which the joint account was opened. This is not the case. The record contains as an exhibit the written direction of the testator to the bank to transfer the balance in his individual account to a new account and to "insert the name of Doris Harmon, my daughter so that said account is made payable to either of us or to the survivor." This evidently conscious acquiescence of the testator in the statutory form of the new account was a substantial fact on the side of a survivorship title of Doris Harmon as joint tenant of the moneys she had taken to herself. But on the other side were the statements and conduct of the party respondent Doris Harmon, to which we have referred. We cannot say that the Surrogate was not warranted in treating these items of evidence as admissions by her that neither she nor the testator ever intended that the opening of the account on the statutory pattern was then and there and without more to endow her with a vested property interest in the deposited moneys as against *42
him. (Matter of Porianda,
Except for the inclusion of the amount remaining in the account when the testator died, the Surrogate's direction for payment over by the respondents to the executor was validly made.
The order of the Appellate Division should be reversed, and the decree of the Surrogate's Court modified in accordance with this opinion, and as so modified affirmed, with costs in all courts to all parties appearing separately payable out of the estate.
CRANE, Ch. J., O'BRIEN, HUBBS, FINCH and RIPPEY, JJ., concur; LEHMAN, J., taking no part.
Ordered accordingly. *43