Farrelly v. Emigrant Industrial Savings Bank

This action was brought to determine the ownership a fund deposited savings by Margaret The account appears to have been opened in her name on the 13th day of October, 1874, upon which date a deposit was made of $1,900, and a passbook issued to her. She thereafter appears to have made deposits in various amounts in the account down to* about July 24, 1880, when the passbook was changed at her instance so as to read, “In account with Margaret Smith or son Frank J.” Several deposits were made thereafter, the last of which was under date of January 6, 1886. The amount of the account upon the 7th day of October, 1903, the date of the trial, was $3,763.49. Margaret Smith, at the time of opening the deposit, was a widow. Her only child was Frank J. Smith. His father died during the early infancy of the son. Many years after the death of her husband Margaret Smith married the defendant Patrick Reilly, with whom she continued to live down to the date of her death, which occurred on the 17th day of April, 1886. At the time of her death the whereabouts of her son Frank J. Smith were unknown, and whether he was alive or dead at that time is not made to appear in this record. A short time prior to the death of Margaret Smith Reilly'

The plaintiff seeks to sustain his right to> the fund upon the theory of a gift inter vivos from Margaret Smith Reilly, the mother, to the son Frank J. Smith. The court below held and it may be that the evidence was insufficient to support the action upon the theory of a gift inter vivos. Mack v. Mechanics’ & Farmers’ Savings Bank, 50 Hun, 477 , 3 N. Y. Supp. 441 .

There is some authority for holding that the change in the form of deposit by which the son was enabled to draw equally with the mother is evidence of an intent upon the part of the mother to constitute the son a joint owner with her in the fund. Whether the deposit, standing alone, disassociated from any other fact, would have such effect, it is not necessary for us now to determine, and we express no opinion thereon. Taking into consideration, however, the form of the deposit, the delivery of the book, with directions to deliver to the son, it would clearly authorize the court to find that it was the intent upon the part of the mother to vest in the son a joint ownership with her of the money, and, being vested with such ownership, the survivor would take the whole. McElroy v. National Savings Bank, 8 App. Div. 192 , 40 N. Y. Supp. 340 ; Matter of Meehan, 59 App. Div. 156 , 69 N. Y. Supp. 9 ; Mack v. Farmers’ & Mechanics’ Savings Bank, supra. Matter of Bolin, 136 N. Y. 177 , 32 N. E. 626 , is not in conflict with this view. That decision is to be limited to the particular facts upon which it was based. All it decides is that, under the circumstances which were made to appear therein, the only purpose of depositing in the name of both Was for matter of convenience, and, such fact appearing, it was held to destroy the force and effect of the deposit in the joint names as constituting a joint tenancy. Where, however, the deposit is in joint names, and the intent appears to create the joint tenancy, its effect is to vest title to the whole fund in the survivor; and under such circumstances, whether the book be delivered to the survivor or not, or whether he ever has had it in his possession during the lifetime of his joint owner, is not of consequence, as the intent existing to create the relation of a joint tenancy title vested in the survivor eo instanti upon the death of the joint owner, and no delivery of anything is necessary to effectuate such result. We think there can be little doubt in the present case but that the intent of the mother was to make her son joint owner with her in the fund, in consequence of which he took immediate title if he survived the mother. It became, however, incumbent upon the plaintiff to show such survivorship, and in this he failed. The only proof given upon the subject was that the son Frank J. Smith visited his mother about ten years before she died. In 1881 she received a letter from him from Denver, in Colorado, as we as

It follows that the judgment was correct, and it should therefore be affirmed, with costs. All concur.