In re the Missionary Society of the Most Holy Redeemer in the State of New York , 95 Misc. 76 ( 1916 )

Ketcham, S.—

The savings bank accounts which' are the subject of controversy were opened in the names of husband and wife, without evidence in the style of the account, unless it is found in the names themselves, or in any other form, of an agreement or intention that the deposits were jointly owned or that either party to the accounts' should take by survivorship. There is no proof as to the ownership' of the deposited funds, or any part thereof, at the time of the deposits.

It was once regarded as settled law that under such circumstances it was to he presumed that each of the parties to the transaction owned one-half of the fund individually, that the deposit was the subject of common, and not joint, ownership, and that there was no agreement or purpose that either should take upon the death of the other. ■

While the decisions in this regard had a firm, hut narrow, basis in the rules affecting ownership in common, they took, little heed of the • common sense — the popular conception — that such deposits would ordinarily not be made, except with the intent that upon the death of one of the parties the other should take the whole fund.

■ It may well be asserted that in any case where, in obedience to rules unknown to the laity, a deposit of this sort was held to be in common and not subject to survivorship, the wish and understanding of the unlearned parties was disappointed1.

There are signs of retreat in the recent opinions' on this subject.

In Matter of Thompson (167 App. Div. 356), the Appellate Division of the first department held that deposits in no respect different from the transactions involved in the case at bar were intended to belong to the wife upon the death of the husband.

The court says: “ At the death of the decedent $12,830.82 was on deposit in various banks in accounts' entitled ‘ Alexander Thompson or Mary E. Thompson.’ The surrogate held that inasmuch as the evidence did not show how much of the deposits belonged to the decedent and how much to his wife, it would be presumed "one-half belonged to each. In reaching this conclusion we think he erred.”

While the opinion cited does not treat of the cases expressly contrary to the result therein reached, and is content with stating only cases in which it was known that- the moneys deposited were wholly owned by the husband and were deposited by himself, the holding itself cannot be misunderstood.

The accompanying decision of the same Appellate Division, in Matter of Dalsimer (167 App. Div. 367), was addressed to a transaction, in which the parties, however they .held the funds involved, made profuse and inevitable evidence of their intent and agreement that their investment should be joint and not common, should vest in each an immediate “ unity of interest, unity of title, unity of time and unity of possession,” and should, upon the death of one, be the property of the other by an ownership instituted at the time of the investment. That case is of no present avail.

The authority of the Thompson case (supra), in the Appellate Division was still subordinate to the explicit judgment of the Court of Appeals in Matter of Albrecht (136 N. Y. 91), and Matter of Kaupper (201 id. 534, affg. 141 App. Div. 54), as well as the equally plain rulings of Wetherow v. Lord (41 id. 413), and Matter of Wilkens (144 id. 803) ; but the case has been affirmed without question of the views upon which the result was based. (217 N. Y. 609.)

The decision has been regarded by Mr. Surrogate Schulz as authority for his own ruling, as follows: “ The fact that

the bond, mortgage and certificate of deposit were taken in the names of the husband and wife, in the absence of evidence to the contrary, shows an intention to create in the wife the right of survivorship.” (Matter of Keil, 91 Misc. Rep. 667.)

It follows that the deposits in question belonged to the wife and formed no part of the estate of the husband intestate.

The account must be approved as made.

Decreed accordingly.

NOTE ON JOINT SAVINGS BANK ACCOUNT BY HUSBAND AND WIFE.

There is a joint ownership of personal property analogous to an estate in lands, but husband and wife do not take personal property as tenants by the entirety, (Matter of McKelway [1917], 221 N. Y. 15.)

Where a husband and wife owned jointly certain securities which they delivered to a trust company to hold as custodian, pay them the income in equal shares, and, if the agreement should be in force at the death of either, to deliver and pay over the securities and any income thereon then on hand to the survivor; they owned the securities as joint tenants but not by the entirety. (Matter of McKelway, 221 N. Y. 15.)

Section 2204 of the Tax Law, as amended (Laws 1915, ch. 664), provides that whenever intangible property is 'held in the joint names of two or more persons as joint tenants and payable to either or to the survivor upon the death of one of such persons, the right of the survivor to the immediate ownership or possession and enjoyment of such property shall be deemed a transfer taxable in the same manner as though the whole property to which such transfer relates belonged absolutely to the deceased joint tenant and had been bequeathed to the survivor by will. (Matter of McKelway, 221 N. Y. 15.)

Where a husband makes deposits in the name of himself and wife and also takes securities in their joint names, it must be presumed, in the absence to the contrary, that a right of ‘survivorship was created when the moneys were deposited and the securities taken, which upon the death of the husband is not taxable. (Matter of Thompson, 167 App. Div. 356, affd. 217 N. Y. 609.)

Where bonds deposited in a -bank were originally owned by a husband were registered in the names of himself and wife “ as joint tenants, with the right of survivorship and not as tenants in common,” a joint tenancy was created, and on the death of the husband two years later the wife takes complete title as survivor. (Matter of Dalsuner, 167 App. Div. 365, 179 N. Y. 112, 221 N. Y. 15.)

A deposit by one person of his own money in his own name as trustee for another, standing alone, does not establish an irrevocable trust during the lifetime of the depositor. It is a tentative trust merely, revocable at will, until the depositor dies or completes the gift in his lifetime by some unequivocal act or declaration, such as delivery of the passbook or notice to the beneficiary.

In case the depositor dies before the beneficiary without revocation, or some decisive act or declaration of disaffirmance, the presumption arises that an absolute trust was created as to the balance on hand at the death of the depositor. (Matter of Totten [1904], 179 N. Y. 112.)