Camarda's Estate

• Decision Date: 26 May 1978
• Citation: 63 A.D.2d 837,406 N.Y.S.2d 193
• Parties: ESTATE of Catherine CAMARDA. In the Matter of the Account of Mary SCHIAVONE, as Executrix of the Estate of Catherine Camarda, Deceased. Mary SCHIAVONE, Appellant, v. Nicholas CAMARDA, Jr. and Rose Camerota, a/k/a Rose Camarda, a/k/a Rose Conroy, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 193

406 N.Y.S.2d 193

63 A.D.2d 837

ESTATE of Catherine CAMARDA In the Matter of the Account of Mary SCHIAVONE, as Executrix of the Estate of Catherine Camarda, Deceased Mary SCHIAVONE, Appellant, v. Nicholas CAMARDA, Jr. and Rose Camerota, a/k/a Rose Camarda a/k/a Rose Conroy, Respondents.

Supreme Court, Appellate Division,Fourth Department.

May 26, 1978.

Anthony J. DiCaprio, Jr., Syracuse, for appellant.

Alderman, Alderman, Samules & Schepp, Syracuse by Eric M. Alderman, Syracuse, for respondents.

Before MOULE, J. P., and CARDAMONE, SIMONS, DILLON and DENMAN, JJ.

MEMORANDUM:

Appellant Mary Schiavone is the executrix of the estate of her mother, Catherine Camarda, whose will was admitted to probate in Surrogate's Court, Onondaga County, in 1972. She filed an accounting of the estate on February 8, 1975 and her sister, Rose Camarda Conroy Camerota, and her brother, Nicholas Camarda, filed objections in April 1975. After a nine-day trial, the Surrogate entered an order in which he sustained three of the objections. The executrix appeals from that order.

Objection 1 charged that the executrix had failed to account for the personal property and household furnishings of the decedent. The Surrogate found that under the terms of the will all of the furnishings were bequeathed to Rose. The evidence indicated that the household furnishings had been variously distributed in such a manner that it was virtually impossible to trace them. Inasmuch as the executrix had placed a value of $1500 on the furnishings when she filed the New York State Estate Tax Return, the Surrogate adopted that sum and surcharged the executrix in that amount. The objectants did not dispute that value; nevertheless, there was testimony by Rose Camerota that she had taken the living room furniture. The executrix should not be surcharged for the value of that furniture but in other respects the evidence supports the determination of the Surrogate.

The duties of an executrix are primarily and generally to settle and distribute the estate of her decedent (Matter of Kohler, 231 N.Y. 353, 365, 132 N.E. 114, 116). If the executrix fails to keep clear and accurate accounts of the estate entrusted to her, all presumptions are against her and all doubts are to be resolved adversely to her (Matter of Shulsky, 34 A.D.2d 545, 547, 309 N.Y.S.2d 84, 88, app. dsmd. 27 N.Y.2d 743, 314 N.Y.S.2d 993, 263 N.E.2d 391).

Objection 2 charged that the executrix failed to account for cash assets in the amount of $5000. Testimony established that the executrix had gathered various packets of money from the home of the decedent on the day of her death and estimated the amount at approximately $5000. The Surrogate treated the executrix's inclusion of $5000 in cash on the New York State Estate Tax Return as an admission of the receipt of that amount by the executrix. This determination is supported by the record and any doubts must be resolved against the executrix (Matter of Shulsky, supra). There was uncontested testimony, however, that she had distributed amounts of $300 to her sister Rose and $300 to her brother Nicholas. The amount of the surcharge therefore should be reduced by the $600 already distributed.

Objection 7 charged that the executrix had failed to include in her accounting money on deposit in three bank accounts which had been held in the names of the decedent and the executrix. Relying on Banking Law § 675, the executrix contended that these accounts were joint bank accounts in which she had the right of survivorship and that therefore the money was hers.

Banking Law § 675 provides, in pertinent part, as follows: "(a) When a deposit of cash . . . has been made . . . in the name of (the) depositor . . . and another person and in form to be paid or delivered to either, or the survivor of them, such deposit . . . and any additions thereto made, by either of such persons . . . shall become the property of such persons as joint tenants . . .

(b) The making of such deposit or the issuance of such shares in such form shall, in the absence of fraud or undue influence, be prima facie evidence, in any action or proceeding to which the banking organization, foreign banking corporation, surviving depositor or shareholder is a party, of the intention of both depositors or shareholders to create a joint tenancy and to vest title to such deposit or shares, and additions and accruals thereon, in such survivor. The burden of proof in refuting such prima facie evidence is upon the party or parties challenging the title of the survivor."

Where the form of the account is according to the foregoing section, it is presumed that the parties intended to create an account held in joint tenancy with the right of survivorship (Matter of Kleinberg v. Heller, 38 N.Y.2d 836, 382 N.Y.S.2d 49, 345 N.E.2d 592; Matter of Reardon, 25 A.D.2d 370, 269 N.Y.S.2d 635). The words of survivorship must appear on the signature card or ledger that creates the bank account (Matter of Fenelon, 262 N.Y. 308, 186 N.E. 794; Matter of Coddington, 56 A.D.2d 697, 391 N.Y.S.2d 760) and the passbook is evidence only of deposits, so that words of survivorship thereon are not controlling (Matter of Fenelon, supra; Matter of Coddington, supra).

The statutory form is met in two of the bank accounts at issue here. Onondaga Savings Account # 584,081 has a signature card and a ledger card both signed by the decedent which contain the words "joint" and "either or survivor may draw". With respect to Syracuse Savings Bank account # 254,794, words of survivorship appear on the ledger card signed by the decedent. Words of survivorship on the ledger card have been found sufficient to meet the statutory form (Matter of Fenelon, supra, 262 N.Y. p. 311, ...