In re the Estate of Widelski , 3 Misc. 2d 733 ( 1956 )

Charles T. Yeager, S.

This is a proceeding brought by Clarence Schmidt, a son of decedent, to compel Stanley Wyroba to pay the amount of a certain savings account to the Lucy Widelski estate.

The said account was opened by decedent in the Erie County Savings Bank on May 1, 1952, with a deposit of $2,130.12, in the following form: “ Mrs. Lucy Widelski in Trust for Stanley Wyroba ”. Between May 1, 1952 and August 16, 1954, the date of decedent’s death, she made one deposit and two withdrawals from said account.

Petitioner contends that the trust was illusory. That respondent had no knowledge of said account prior to the death of the decedent, that decedent exhibited incidents of ownership over said account, and that the decedent executed a will within a month after the establishment of said account, are insufficient to justify a finding that the transfer was illusory. (Matter of Zern, 138 N. Y. S. 2d 894; Matter of Leiman, 116 N. Y. S. 2d 658.)

There is no evidence that' decedent revoked or disaffirmed the account during her life. (Matter of Halpern, 303 N. Y. 33; Matter of Zern, supra.)

The court holds, therefore, that the Totten trust was valid, and said bank account the property of respondent. An order may enter accordingly.