125 N.Y.S. 878 | N.Y. App. Div. | 1910
In 1892 one Lorenz Kaupper purchased a farm, taking title in his own name. In October of the same year he conveyed to his wife, Catharina Kaupper, an undivided one-half part thereof, and on the same day she executed and delivered to him a release of her dower. Without determining the legal effect of this release,. I think it is apparent that the intent of the parties was to create a tenancy in common in the land. In 19.07 Kaupper and his wife conveyed the farm to Abraham Balinky, and took back a bond of the said Balinky, payable to Lorenz Kaupper and Catharina Kaupper, his wife, their executors, administrators or assigns. This bond was secured by a purchase-money mortgage upon the premises.
It appears from the testimony of the attorney, who represented the parties at the time of the sale, that a discussion arose respecting the person in whose name the mortgage should be taken. He testified : “ Mrs. Kaupper wanted the title to the mortgage ; she asked to have the title put in her name, and there was some talk about it
I think that'the surrogate’s decree should be affirmed. Conceding that the law does not recognize such a thing as tenancy by the entirety in personal property (Matter of Albrecht, 136 N. Y. 91, 94), it still does recognize a joint tenancy in personal property, which may be created if the parties so intend, irrespective of whether the tenants be husband and wife, and in such case the right of survivorship does exist. (West v. McCullough, 123 App. Div. 846; affd., 194 N. Y. 518.) In the absence of direct evidence as to the intent, the law deals with presumptions. It has been held that if the husband and wife eacli contrib.ute. to a joint investment, or to the purchase of a security, and the title is taken in their joint names to be held by them, their -executors,'administrators or assigns, no presumption arises from the nature of the act that either intended to make a gift of his or her share to the survivor, and they would hold the same as tenants in common. (Matter of Albrecht, supra.) On the other hand, where a husband purchases with his own funds personal property, taking the title thereto in the joint name of hinrself and his wife, or makes a deposit in the savings bank of his own funds in their joint names, in the absence of other evidence the presumption will be that he intended to confer upon his wife tl'ieriglit of survivorship. (West v. McCullough, supra; Platt v. Grubb, 41 Hun, 447; McElroy v. Albany Savings Bank, 8 App. Div. 46; McElroy v. Nat. Savings Bank, Id. 192; Matter of Meehan, 59 id. 156.) Where it does not appear to whom the money belonged when it was placed in the bank, or who placed it there, although the bankbook may be in the joint name of husband . and wife; in the absence of other evidence of intent the presump- ' tión will obtain that each had an equal interest therein. (Wetherow v. Lord, 41 App. Div. 413.) In view of the. fact that the -real property; which was sold at the -time that the bond and purchase-money-mortgage 'Were taken, was held -under circumstances which would justify a conclusion that the "husband and wife owned' it as tenants in common, in the absence of other .evidence it might be presumed
This contention seems to me to be unfounded; The statute by its terms is limited to real property; So far as the nature of the tenure, of an estate in personal property is concerned, it may be conceded that the statutory rule here expressed is applicable also to personal property. (Mills v. Husson, supra.) It may be that in the case of1 real property the statutory .presumption that grantees hold as tenants in common “ is only removed by an express declaration. that they take as- joint tenants, or by words from which it, clearly appears that.there is an intention to create a joint tenancy,” and 'that “ This intention can only be gathered from the expression used in the devise [or grant], and must be a -necessary. implication from it.”. (Gage v. Gage, 43 Hun, 501; affd., 112 N. Y. 667; Jooss v. Fey, 129 id. 17; Miner v. Brown, 133 id. 308.)
So far as the character of the property is concerned there is no
"The decree of the Surrogate’s Court-of. Kings- county, should be-affirmed,'with costs. p ;■ . ;
Hirschbero,' P. J.,,. "WoodWard and Jeotcs,- JJ., concurred;" Thomas, J., read for modification. ' .
• Husband and wife as tenants in common owned land, which they sold;'receiving1 therefor a bond and.mortgagé.payable to them., They took and lield the •securities as tenants,in -common,by virtue of section.. 56 of'tlie’Eeal Property Law, undoubtedly applicable to personal property.1 (Mills v. Husson, 140 N. Y. 99, 104; Matter of Kimberly,
Decree of the Surrogate’s Court of Kings county affirmed, "with costs. ' • . ■ ' "