58 N.Y.S. 783 | N.Y. App. Div. | 1899
The agreed statement of facts discloses that William G. Peirson in his lifetime ivas the owner of certain real property situate in the borough of Brooklyn, in which his wife, Martha W. Peirson, had an inchoate right of dower. In Uovember, 1895, Peirson and his wife entered into a contract with Robert C. Hopkins, whereby Hopkins agreed to purchase said property and assume the payment of the first mortgage thereon, and to execute and deliver to Peirson and wife a second mortgage. Such contract was thereafter executed, and Peirson and wife conveyed by deed to Hopkins, taking back therefrom a bond given by Hopkins, secured by a mortgage upon the property, which bond and mortgage are the subject of this controversy. Peirson died on the 3d day of September, 1896, leaving his wife him surviving, and on the 13th day of December, in the same year, the wife died. The defendants, executors and
The question seems to be settled by authority. Where a husband, being the owner of property, takes a security thereon in the joint names of himself and wife, or invests his money in security in their joint names, the rule of law is that if the wife survive the husband she tabes the entire property. (Sanford v. Sanford, 45 N. Y. 723 ; S. C., on another appeal, 58 id. 69.) This doctrine proceeds upon the ground that as the transaction possesses all the essentials of a gift causa mortis an intent is presumed on the part of the husband to give to the wife, in the event she survive him, the whole property. Such rule, however, does not obtain where the husband during his lifetime revokes the transaction or makes other disposition of the property; nor does it apply where the husband and wife each contributes of their joint funds to the investment, as in such case they become tenants in common of the security, with all the rights and incidents of such relationship, and title and right thereto go to the executors and administrators of each, and the doctrine of tenancy by the entirety does not obtain. (Matter of Albrecht, 136 N. Y. 91.) We have at the present term had occasion to consider the rights of parties under somewhat similar conditions. (Wetherow v. Lord, post, p. 413.) . There the money was deposited in the joint names of husband and wife in a savings bank, but it did not appear whose money it was at the time of the deposit; and we held, in the absence of any proof as to the original ownership of the- money, that the parties took equally, and that a gift by the husband of the whole to a third party during the survivorship of the wife could not be upheld, as they were presumed to have an equal interest in the money. But in this case it is
It follows that judgment should be ordered for the plaintiff upon the submitted case.
All concurred.
Judgment for plaintiff on agreed statement of facts, with costs.