13 Mills Surr. 536 | N.Y. Sur. Ct. | 1915
The record before the referee was somewhat informal, but I think that his general conclusion is justifiable and not inconsistent with justice. The exceptions to the referee’s report bring up for consideration the correctness of his findings upon the questions presented by the objections to the account of the executor. These so-called objections were not in reality objections to the account, because the payments objected to had not been made by the executor; they were rather objections to the contemplated payment by the executor of claims against the estate. The legatees contend that' the executor should not pay Mary E. Joyce a legacy of $500 given to her in the will of the testator, and they also object to the allowance of her claim against the estate for $1,650. They contend that Mary E. Joyce is not entitled to the legacy because since the death of the testator she has obtained and still retains possession of the sum of $500, which was part of decedent’s estate at the time of his death. Therefore the questions presented to the referee for determination were, first, did Mary E. Joyce receive $500 which at the date of decedent’s death constituted a part of his estate ? second, should her claim against the estate for the sum of $1,650 be allowed by the executor ?
The decedent died on May 7, 3912. Prior to his death he Fad an account in the Harlem Savings Bank and an account with Clark Brothers, bankers. On May 8, 1912, Mary E. Joyce presented to Clark Brothers a check drawn on them for $300, dated April 6, 1912, signed by the testator and payable to her. The amount of the check was paid to her. On May 9, 1912, she presented to the Harlem Savings Bank a check drawn on that bank for $200, signed by the testator and payable to bearer. This check was indorsed by Mary E. Joyce and paid by the bank. The amount of each of these checks was charged by the respective banks on which they were drawn to the •account of the testator. The referee found there was no evidence
Eo question is raised in this proceeding as to the right of the banks to pay fhe checks, and no evidence .was introduced to show whether the banks had notice of the death of the testator at the time the checks were presented for payment. In the absence-of objections 'by the legatees it will be presumed that the executor’s failure to proceed against the banks was due to-the fact that the banks had no knowledge of the death of the testator at the time the checks were paid, in which case no recovery could be had against them. (Glennan v. Rochester Trust & S. D. Co., 209 N. Y. 12.) The giving of a check does not operate to transfer the amount therein mentioned from the depositor to the holder of the. check until it has been accepted by the bank. (Aetna Nat. Bank v. Fourth Nat. Bank, 46 N. Y. 87; Attorney-General v. Continental Life Ins. Co., 71 id. 325; Risley v. Phenix Bank, 83 id. 318.) As the checks were not presented to the banks by Mary E. Joyce until after the death of the testator there was no acceptance of the checks during his life and therefore no valid assignment of the funds represented by them.
But while the banks, in the absence of notice of the death of the testator, would be protected in making payments to IJary E. Joyce as holder and payee of the checks, her authority to-draw the money was revoked by the death of the testator. (Fordred v. Seamen’s Sav. Bank, 10 Abb. Pr. [N. S.] 425 ; Long v. Thayer, 150 U. S. 520.) She therefore had no authority to draw the money after the death of the testator; it constituted a part of testator’s estate, and; the fact that the banks paid it to Mary E. Joyce did' not confer upon her any right to-
Mary E. Joyce filed a claim against the estate for the sum of $1,650, alleged to be due her on a contract with the testator for nursing him and attending on him. All the parties interested have filed! a consent that the surrogate may pass upor; this claim.
The testator was sick for about a year prior to his death, although he was not confined to his bed until about two'weeks before he died. Mary E. Joyce, the claimant, was his niece,
The learned referee’s conclusion of law Ho. 1 should read as follows: That the legacy of $500 given by the testator to Mary E. Joyce should be set off against the $500 obtained by her on his checks after his death.
As modified the referee’s report is confirmed. Settle decree and tax costs on notice. ‘
Decreed accordingly.