In re the Estate of Blumenthal

Alfred Blumenthal and Hannah Blumen-thal, hi's wife, were the owners as tenants by the entirety of the premises known as Nos. 503-505 West One Hundred and Eleventh street in the borongh of Manhattan, city of New York. They sold the premises, taking back from the purchaser a bond and mortgage executed to Alfred Blumenthal and Hannah Blumenthal, his wife. Thereafter and while the said Alfred Blumenthal and his wife were still the owners and holders of said bond and mortgage, Alfred Blumenthal died on or about the 12th day of June, 1921, and Hannah, his wife, died shortly thereafter on or about the 24th day of June, 1921. It is said that both died as the result of injuries sustained in a railroad accident in Spain.

A question has arisen regarding the ownership of this purchase-money bond and mortgage. If the bond and mortgage are to be treated as a substitute for the reál estate and as being held by the parties like an estate by

The executors of Hannah Blumenthal’s estate brought proceedings before the surrogate against the éxecutors of Alfred Blumenthal’s estate to compel them to. turn over to the petitioners the bond and mortgage, claiming that Hannah as survivor was the sole owner thereof. The learned surrogate and the Appellate Division, on appeal, were of the opinion that the petitioners were right and cited Matter of Kennedy ( 186 App. Div. 188 , third department). This is an authority on the point as it was there decided that a purchase-money mortgage arising from the sale .of real estate owned by the husband and wife as tenants by the entirety takes the place of the real estate, and presumptively on the death of either mortgagee passes to the survivor as the real estate which it replaced would have done. Matter of Baum ( 121 App. Div. 496 , second department) is an authority the other way, for it was there decided that when husband and wife being tenants by the entirety, convey land and take back a purchase-money mortgage payable to both, the survivor is not entitled to the whole proceeds of the mortgage. The courts below were of the opinion that the second department had later reconsidered this conclusion in West v. McCullough ( 123 App. Div. 846 ; affd., 194 N. Y. 518 ). The two cases were dissimilar in principle. The Baum case was an estate by the entirety, later changed

The intention of the husband is the thing to be looked for. When he takes the title out of his own name and shares it with his wife, it has been said that this evidences an intention that she shall take by survivorship. (See cases cited in Kennedy Case, supra.) The presumption does not apply to one not a wife. (Matter of Bolin, 136 N. Y. 177 .) But how can we discover any such intention when we do not know who owned or paid for the property in the first place? Such an instance was touched upon correctly by the late Mr. Justice Burr in Matter of Kaupper ( 141 App. Div. 54 , 57). “ 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 each contribute 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. On the other hand, where a husband purchases with his own funds personal property, taking the title thereto in the joint name of himself 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

So in this case of the estate by the entirety, the real estate was sold, the estate ended and in its place we find a purchase-money mortgage in the name of husband and wife without knowing whose money it represents. The furthest a reasonable presumption will carry us is that each owns one-half. This is just what the statute says.

Section 66 of the Real Property Law (Consol. Laws, ch. 50) reads: “ Every estate granted or devised to two or more persons in their own right shall be a tenancy in common, unless expressly declared to be in joint tenancy; but every estate, vested in executors or trustees as such, shall be held by them in joint tenancy.” This applies also to personal property. (Matter of Kimberly, 150 N. Y. 90 .) There was no mention of a joint tenancy in the mortgage, the grant being “ to Alfred Blumenthal and Hannah Blumenthal, his wife.” To say tha't “ the mortgage took the place of the real estate,” as was said in the Kennedy case, is merely to jump at a conclusion. Such could be said about a mortgage given in part payment if it covered other property than that sold or could likewise be said about any security given in payment. True it would take the place of the real estate as a possession of like value but not necessarily of like ownership. Estates by entirety are peculiar to real estate. No such thing exists, except by analogy, as to personal property. (Matter of Albrecht, 136 N. Y. 91 ; Matter of McKelway, 221 N. Y. 15 .)

The real property which Alfred Blumenthal and Hannah Blumenthal, his wife, owned, was deeded away by them. It was sold. It was conveyed by a deed passing title in

This is all we have. There is nothing else to¡ indicate the intention of the parties except these words. Under these circumstances the bond and mortgage were held in common and the husband and wife had an equal share or ownership therein.

The orders of the Appellate Division and the surrogate'" must be reversed and the petition dismissed, with costs.

(dissenting).^Alfred and Hannah Blumenthal were husband and wife. Alfred died oh June 12, 1921, and Hannah twelve days later. Each left a last will and testament, which have been admitted to probate and letters testamentary issued to the executors' therein named. During their lifetime they owned certain real estate in the city of New York as tenants by the entirety, which they sold, taking in payment a bond of the purchaser, the payment ’oif which was secured by ,a purchase-money mortgage. The purchase price of the

I am of the opinion that Hannah, having survived the death of her husband, thereby became the owner of the bond and mortgage. This conclusion, it seems to me, is sustained by the great weight of authority in this country and in England. (See George v. Dutton, 8 Am. Law Rep. Ann. 1014, note, p. 1017, and authorities there cited.)

In reaching this conclusion I am not unmindful of the fact that this court has held that the law does not recognize such a thing as tenancy by the entirety in personal property. (Matter of Albrecht, 136 N. Y. 91 ; Matter of McKelway, 221 N. Y. 15 .) It does, however, recognize such an interest in personal property, whether it be called tenants by the entirety, tenants in common, or any other name, that where securities be taken in the names of a husband and wife, the right of survivorship exists, unless there b.e something to show a contrary intent. Thus, where one loaned money and took from the borrower a promissory note payable to the order of himself and his wife, it was held the same belonged to her as survivor. (Sanford v. Sanford, 45 N. Y. 723 .) This authority was cited with approval in Fowler v. Butterly ( 78 N. Y. 68 , 72); also in Augsburg v. Shurtliff

It has been held that where a husband deposits money in a savings bank in the name of himself and wife, the presumption is, in the absence of evidence to the contrary, that he intended to confer upon her the right of survivorship, even though he never delivered the bank books to her and made certain withdrawals from the account. (West v. McCullough, 123 App. Div. 846 ; affd., 194 N. Y. 518 .) I

The same presumption prevails where a husband purchases securities with his own funds and takes title thereto in the names of himself and wife. (Matter of Kaupper, 141 App. Div. 54 ; affd., 201 N. Y. 534 . See, also, Matter of Thompson, 167 App. Div. 356 ; affd., 217 N. Y. 609 .)

Nor have I been able to find any authority in this state to the contrary, except Matter of Baum ( 121 App. Div. 496 ), and that case, I think, was overruled by West v. McCullough (supra). The doctrine of that case certainly has not been approved by this court as the authorities above cited indicate.

The title to the real estate was held by the husband and wife as tenants by the entirety. The presumption is, if a presumption is to be indulged in, that both contributed towards its purchase. The mortgage took the place of the real estate and on the death of either mortgagee passed to the survivor, as the real estate which it replaced would have done. (Matter of Kennedy, 186

I, therefore, dissent from the decision about to be made and vote to affirm the order appealed from.

Hogan, Cardozo, Pound and Andrews, JJ., concur with Crane, J.; McLaughlin, J., reads dissenting opinion, with whom Hiscock, Ch. J., concurs.

Orders reversed, etc.