In re Baum — 106 N.Y.S. 113

Majority

p. 113

(121 App. Div. 496.)

In re BAUM.

(Supreme Court, Appellate Division, Second Department.

October 4, 1907.)

Headnote

1. Husband and Wife—Estate by Entirety—Application to Personal

Property.

The law of tenancy by the entirety does not apply to personal property. [Ed. Note.—For cases in point, see Cent. Dig. vol. 26, Husband and Wife, §§ 73, 88.]

2. Same—Termination.

That a bond and mortgage taken in the name of the husband and wife were given in part payment of the purchase price of land owned by them in entirety does not entitle the husband, as survivor on the death of the wife, to the whole of the proceeds of the bond and mortgage, since on the sale of the land the tenancy by the entirety ended.

p. 114

Appeal from Surrogate’s Court, Queens County.

Accounting by John George Baum, administrator of the estate of Fredericka Baum, deceased. From a decree of the surrogate, charging him with one-half of the proceeds of certain bonds and mortgages, the administrator appeals. Affirmed.

Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, MILLER, and GAYNOR, JJ.

Leander B. Faber (Charles H. Street, on the brief), for appellant.

James J. Conway, for respondent Breul.

Henry D. Merchant, for respondents Durkel and Fortcher.

This appellant and his wife owned a piece of real estate as tenants by the entirety. . They conveyed it, and took back a purchase money bond, and mortgage made payable to both of them for part of the purchase money. He owned another piece of real estate, conveyed it, she joining, and took back a like purchase money bond and mortgage made payable in the same way. She afterwards died and he is her administrator. The surrogate has charged him as such administrator with one-half of the proceeds of the said bonds and mortgages, they having been paid since the wife’s death. He claims that he is entitled to the whole of such proceeds as survivor, and appeals. The law of ownership or tenancy by the entirety does not apply to personal property. To enable the husband to take the whole by survivor-ship there would therefore have to be an agreement to that effect, or a gift causa mortis, and there is neither here. That one of the pieces of land was owned by the husband and wife as tenants by the entirety does not make a different case. When it was sold such tenancy was endéd. Matter of Albrecht, 136 N. Y. 91 , 32 N. E. 632 , 18 L. R. A. 329 , 32 Am. St. Rep. 700 .

The decree of the surrogate should be affirmed.

Decree of the Surrogate’s Court of Queens county, so far as appealed from, affirmed, with costs payable out of the fund. All concur.

Cases cited

In re the Final Accounting of Executors of Albrecht 136 N. Y. 91 N.Y. 1892-11-29 p. 114