192 Misc. 61 | N.Y. Sur. Ct. | 1948
In this discovery proceeding, the executors seek to compel the delivery to them of certain moneys and personal property withheld by the respondent, the widow of the decedent. The moneys sought to he recovered are the proceeds of a checking account opened in the First National Bank of Daytona Beach, Florida, in the name of “ Simon or Sura Kugel.” The evidence indicates that the funds deposited from time to time were those of the decedent. Under the terms of the contract with the bank ‘ ‘ either one or both or the survivor ’ ’ were to sign checks. The issue presented is whether under the form of the account the moneys remaining in the bank at the date of the decedent’s death passed to his estate or to his
A somewhat similar situation was present in Matter of Kelly (supra). There the widow of the testator had purchased during his lifetime out of her own funds a valuable diamond ring which she had planned to give to her son. The latter refused to accept delivery on the ground that it was “ too flashy.” The testator then wore the ring for a number of years prior to his death. Judge Bippey, who wrote on behalf of the court on this phase of the case said (pp. 149-150): “ The mere fact, if it were a fact, under the circumstances disclosed at the time of the attempted gift to the son, that the ring was then left in the possession of the deceased, gave rise to no presumption of any intent on the part of the claimant to give the property to the husband or to divest herself of title thereto. There is no evidence that she then left the ring in his possession. But .had it appeared that claimant then left the ring in the possession of the husband while they were living together as .husband
Under paragraph “ Fourth ” of the will the decedent bequeathed to his wife all of his “ household goods, furniture and furnishings ” in any house or residence of his at the time of his decease. The Surrogate Folds that items 16, 17, 18, 19, 20 and 21 of paragraph 4 (b) passed to- the respondent under this paragraph. Items 1, 4 and 5 of paragraph 4 (e), except the hatbox, also passed to the respondent under the paragraph. These latter items which include a silver tea service and tray, a Dutch silver jewel box and certain luggage, were acquired by the decedent from the estate of his former wife who had predeceased him. It is asserted by the executors that the decedent had only a one-third interest in these articles as a distributee of such -wife’s estate. So far as it appears here, however, distribution of her estate had been completed and releases acknowledging receipt of their distributive shares had been duly signed and executed by all of the distributees. If there were an oral understanding between the decedent and his children as to their interests in the property passing from their mother’s estate, there is no legal basis, in the face o £ the proof in the record, of avoiding the legal effect of the execution and exchange of the releases. These articles are held to be the property of the decedent and pass to the respondent under his will. .They should be returned to the executors.
Submit decree on notice accordingly..