In re the Inquiry Concerning Personal Property in the Estate of Delmore , 160 N.Y.S. 62 ( 1916 )

Dowling, J.:

The question involved in this appeal is the ownership of three savings-bank accounts: one in the Union Dime Savings Bank for $3,050.50, the second in the Bank for Savings in the same amount, and the third in the Emigrant Industrial Savings Bank for $1,392.56. These accounts originally stood in the name of the decedent, and in April, 1913, in the presence of her daughter (the appellant) and a disinterested witness the decedent caused the said accounts to be transferred so that one stood in the name of “Mary A. Delmore, Mary F. McG-iff, to be drawn by either or the survivor; ” the second in the name of “ Mary A. Delmore and daughter Mary F. McGfiff or either and survivor;” and the third in the name of “Mary Delmore or daughter Mary McG-iff or the survivor.” The decedent died January 13, 1915, and letters of administration were issued by the surrogate of the county of New York on May 14, 1915. Thereafter an inquiry was directed upon the petition of the said administratrix by one of the surrogates of the county of New York as to the moneys and personal property of the estate, if any, in the possession of the appellant, who was the oldest child of the decedent, and it was upon the testimony taken on such inquiry that the order appealed from was made.

We deem it unnecessary to discuss at length the testimony in relation to the transfer of the funds in question further than to say that it is convincingly established, as the surrogate himself found, that the decedent at the time she made the transfers was mentally competent and that they were not the result of any undue influence exercised upon her by the respondent. Furthermore, the testimony satisfactorily establishes a valid gift by the decedent to her daughter (the appellant) of the funds in question. (Kelly v. Beers, 194 N. Y. 49.) In addition, under section 148 of the Banking Law (Consol. Laws, chap. 2; Laws of 1914, chap. 369), which re-enacted in amended form section 144 of the former Banking Law (Consol. Laws, chap. 2; Laws of 1909, chap. 10), those deposits having been made in the name of the depositor and another person and in form to be paid to either or the survivor of them, the deposits and any additions made thereto by either of such persons upon the making thereof became the property of such persons as joint tenants and the same together with all interest thereon became their property and payable tobither during the lifetime of both or to the survivor after the death of one of them. Therefore, both from the viewpoint of a valid gift, and of the vesting of title to the deposits in the survivor by operation of the Banking Law, the funds in question were the property of Mary F. McGriff and not of the estate of the decedent. Any finding to the contrary, therefore, was unwai'ranted.

The decree appealed from will, thei’efoi’e, be reversed, with costs to the appellant payable out of the decedent’s estate, and the proceeding remitted to the Surrogate’s Coux’t for appropriate action in conformity hex’ewith, that it may be adjudged that the deposits in question are the property of the appellant and not of the estate.

Clarke, P. J., McLaughlin, Scott and Davis, JJ., concurx’ed.

Decree reversed with costs to appellant, payable out of the estate, and proceeding remitted to SuiTOgate’s Coui’t for further action in accordance with opinion.