In re the Judicial Settlement of the Accounts of Bolen — 47 N.Y. St. Rep. 762

Majority

p. 762

In the Matter of the Judicial Settlement of the Accounts of Bridget Bolen, Adm’rx of Julia Cody, Deceased.

(Supreme Court, General Term, Second Department,

Filed July 22, 1892.)

Headnote

1. Gifts—Inter vivas—Deposit in bank—Evidence.

The intestate drew out money deposited in her name and deposited it in

p. 763

the name of herself or daughter B. The hook issued in those names came into the possession of B., and there remained until the death of intestate, when she drew out the money and claimed it as her own. Held, that no evidence of a valid gift or delivery being shown, and only evidence of an intent on the part of the intestate to make a will in favor of B., the latter was not entitled to the deposit.

2. Same—Joint tenancy, survivor of.

In such case the theory of survivorship of a joint tenancy is untenable.

Appeal from a decree of the surrogate’s court of Kings county, charging the administratrix with a deposit in bank claimed by her as a gift from intestate.

The surrogate’s opinion was as follows:

Abbott, S.—Ho' valid gift or delivery is shown by the evidence. In re Ward, 2 Redf., 251. The theory of survivorship of a joint tenancy is also untenable. Mulcahey v. Em. Ind. Sav. Bank, 89 N. Y., 435 . From the testimony of Mr. Lovigne, an intent appears on the part of Julia Cody to make a favorable testamentary disposition toward the Bolins at some subsequent time. Referee’s report confirmed.

Phillips & Avery, for app’lt; William J. Cass, for resp’t.

—This is an appeal from the decree of the surrogate confirming the report of a referee.

The question involved is the right to a deposit of' $1,016.50 in the Emigrant Industrial Savings Bank.

The deposit originally stood in the name of Julia Cody, the deceased intestate, and in August, 1879, the money was re-deposited in the name of Julia Cody or daughter Bridget Bolen, and in February, 1886, the money was drawn out and again re-deposited in the name of Julia Cody or daughter Bridget Bolen, and a bank book was issued by the bank in the same names, which came to the possession of the daughter, Bridget Bolen, and remained there until the death of her mother, when she drew the amount of money from the bank and claims the right to retain it.

That claim is controverted by her sister, Mary Heany, who disputed the account of the administratrix rendered to the surrogate, which failed to charge herself with that amount.

The surrogate referred the matter to a referee, who decided the question against the administratrix, and his report being confirmed by the surrogate, the administratrix appealed from the decree of confirmation.

Our conclusion is in favor of the decree and the same should be affirmed, with costs payable by the appellant personally.

Barnard, P. J., and Cullen, J., concur.