Kaminsky v. Smith

40 A.D.2d 522 | N.Y. App. Div. | 1972

In an action inter alia for a judgment declaring that two bonds and sums in three Totten Trust savings accounts were the property of Nathan Kaminsky, plaintiff’s intestate, the appeal is from (1) a judgment of the Supreme Court, Kings County, dated July 14, 1970, in favor of plaintiff’s said intestate, after a nonjury trial and (2) an order of the same court dated June 1, 1970, which inter alia added, as a party plaintiff, said Nathan Kaminsky as administrator of the estate of Jennie Kaminsky. Order affirmed, without costs. No opinion. Judgment modified, on the law and the facts, by striking therefrom the first, second, third and fifth decretal paragraphs and substituting therefor a provision dismissing the complaint except for the claim with respect to the State of Israel bond. As so modified, judgment affirmed, without costs. Assuming that Nathan Kaminsky had given his wife, the decedent Jennie Kaminsky, money pursuant to an oral agreement whereunder she promised to deposit the moneys in a joint savings account, the balance to go to the survivor, there is no proof that Mrs. Kaminsky thereafter took those moneys and with them created the Totten Trusts or purchased the United States savings bond. In any event, plaintiff’s evidence concerning the agreement was barred by CPLR 4519. Nor were the Totten Trusts illusory transfers. If the accounts were set up by Mrs. Kaminsky to place her moneys beyond her husband’s distributive share, that motive, for which there is no evidence, does not extinguish the beneficiaries’ interests (Matter of Halpern, 303 N. Y. 33). The record discloses no act of revocation or of disaffirmance of the accounts by Jennie, hence “ the presumption arises that an absolute trust was created as to the balance on hand at the death of the depositor” (Matter of Totten, 179 N. Y. 112, 126). With respect to the proceeds of the State of Israel bond, the award to Nathan Kaminsky as administrator of his wife’s estate should not be disturbed. The evidence of defendants Rothman and Smith proves that no beneficial interest was to pass to defendant Rothman, the joint tenant with Mrs. Kaminsky in that bond. Hopkins, Acting P. J., Latham, Shapiro, Gulotta and Christ, JJ., concur.