153 N.Y.S. 1035 | N.Y. App. Div. | 1915
Charles F. Wickenheiser died at the city of New York on January 26, 1908, leaving a will thereafter duly admitted to probate, whereof George Herring, his brother-in-law, was executor, to whom letters testamentary were issued February 27, 1908. By his will, after the payment of $2,000 to his mother, all the residue of his property was left to his widow and two children by a prior marriage, to be divided between them equally. Forming part of his estate was a deposit of $2,494.90 in the Dry Dock Savings Institution. On March 2, 1908, four days after the letters were issued to him, Herring presented the pass book of the deceased, numbered 440,015 and representing said account, to said institution, surrendered it and opened a new account in his own name, represented by pass book No. 489,054, wherein he was credited with the amount of money that remained in decedent’s account ($2,494.90) and with all interest thereon down to the date of such surrender, the new deposit including interest allowed on the decedent’s account from January 1, 1908, which would not have been credited upon a new account but was only credited because it was a transfer of an old account. At the time that the transfer was made he presented to the institution the surrogate’s certificate of his qualification as executor, and also a waiver from the attorney for the State Comptroller. It was upon these papers that the transfer was made. On the next day, March third, he called at the Colonial Bank, wherein he was a depositor, and obtained a demand loan of $1,000, giving an assignment of the new pass book in his name in the institu
The plaintiffs not being entitled to have a trust in their favor impressed upon the deposit in question, which shall take precedence over the Colonial Bank’s claim, what are their rights as against the Dry Dock Savings Institution ? They are not suing here upon any theory of negligence upon its part, but simply upon the ground that the deposit in question represents funds of the estate which should be applied to the discharge of their claims against it. Against this contention neither appellant seeks to argue, save in so far as the Colonial Bank contends (and as we have indicated, properly) that such fund is first chargeable with the amount of its own advance to Herring. The institution had the right to transfer the account to Herring individuaHy, upon his demand that it do so and the production of the necessary documents establishing his title. “An executor, as such, takes the unqualified legal title of all personalty not specifically bequeathed, and a qualified legal title to that which is so bequeathed.” {Bloods. Kane, 130 N. Y. 514.) “The executor is the owner of the personal property of the testator; the absolute title vests in him, and he possesses the jus disponendi in its full force. The honest purchaser is under no duty to see that the moneys are faithfully applied by the executor.” (Leitch v. Wells, 48 N. Y. 595.) Being
Ingraham, P. J., McLaughlin, Laughlin and Hotchkiss, JJ., concurred.
Judgment modified as directed in opinion, and as modified affirmed, with costs to both appellants against respondents. Order to be settled on notice.