Grishaver v. Grishaver

• Decision Date: 20 December 1961
• Citation: 225 N.Y.S.2d 924
• Parties: Elizabeth GRISHAVER, Plaintiff, v. Henri GRISHAVER, Defendant.
• Court: New York Supreme Court

Page 924

225 N.Y.S.2d 924

Elizabeth GRISHAVER, Plaintiff, v. Henri GRISHAVER, Defendant.

Supreme Court, Special and Trial Term, New York County, Part XVI.

Dec. 20, 1961.

Erdheim & Armstrong, New York City, for plaintiff.

Louis Susman and Jacob Stein, New York City, for defendant.

HARRY B. FRANK, Justice.

In addition to her four causes of action for a legal separation, the plaintiff-wife is suing for the return of certain securities presently in the possession of the defendant-husband which she claims belong solely to her, together with an accounting incident thereto. She has also joined a claim for reimbursement of funds allegedly expended out of her separate estate for necessaries for herself and a son of the parties.

Turning first to the claim regarding the securities, we find that it involves the ownership of a substantial number of corporate stocks and bonds. Each of these securities is registered in the names of both the husband and the wife, with the additional description that they hold as joint tenants with right of survivorship and not as tenants in common. In a few of the certificates this descriptive phrase is abbreviated rather than spelled out completely.

It is plaintiff's contention that the certificates do not accurately reflect the true ownership rights and that she is the sole owner of the securities, having merely entrusted them to the defendant, who is presently in sole and exclusive possession thereof, to hold them intact for her and to accumulate and hold for her use and benefit the income and profits therefrom, and that he refuses to return them to her.

The history of these securities goes back to the days preceding World War II. The parties, who were married in Amsterdam, Holland, on July 27, 1926, lived in Europe until the Nazi terror made their departure imperative. During those trying days of 1939-1940 when the parties and their two children were preparing to flee, plaintiff's father, apparently a man of means, gave them a substantial amount of money in gold and turned over securities, in the form of Dutch Bearer Certificates issued against various American securities. There is some conflict in the record as to whether the securities were given outright by the father, or merely for safekeeping out of reach of the Nazis. There is, also, some disagreement as to whether delivery was made to plaintiff, or defendant, or both. In view of the life and death nature of that period, it is understandable that some uncertainty should surround such transactions.

In any event, the Grishavers were among those fortunate few who were able successfully to escape and reach the United States. Upon their arrival here, in 1941, the securities were delivered into the custody of the U.S. authorities as required by law by reason of their status as aliens. At that time ownership was declared in the names of Henri Grishaver and Elizabeth Grishaver, jointly. At the end of 1946, the securities were released upon the filing of an application, signed by both the plaintiff and defendant, containing the declaration that: 'They are the owners jointly of the securities listed on the back hereof and that no other party has an interest therein * * *'. At that time the securities were exchanged for definitive certificates issued in the names of both as joint tenants with right of survivorship. These documents were thereafter placed with the Chase Manhattan Bank, for custody purposes, and were retransferred to the parties in 1958 in their present form. Since their retransfer the securities have been in the sole possession of the defendant who has been receiving and controlling the income therefrom.

The record discloses that Mrs. Grishaver's father died in Europe, in 1943, where he was survived by two other children, in addition to the plaintiff. The Grishavers, having prospered financially, made several trips to Europe after 1948. It appears that during the course of one such visit, in 1953, Mrs. Grishaver's brother and sister made some claim to the securities in question on the ground that they were part of the father's estate at his death. Both parties agree that some payment was made, plaintiff claiming that she paid them with her own monies while defendant conversely claims that it was he who bought out their interests.

The parties lived in apparent harmony until late in 1957, or early 1958, when domestic discord arose. Without elaboration, the record indicates that the fault lay with the husband who had become involved with another woman. The plaintiff, perhaps because of her European background, exercised commendable restraint and, despite her husband's conduct, took no steps to alter the marital status until mid 1959 when she instituted an action for separation. No claim relative to these securities was made in that action. The parties reconciled a few months later and lived together until the defendant abandoned his wife in August 1960, giving rise to the instant action.

The evidence shows that the parties filed joint tax returns up through the year 1959, and in each such return the securities were listed as 'Jointly Owned Securities' and the exact annual income therefrom declared. The last such return was signed by the plaintiff on May 4, 1960.

In view of the original ownership of these securities by her father, and defendant's recent conduct, plaintiff's desire to preempt sole ownership of the securities is understandable. However, the ownership rights in the securities are not dependent upon hindsight, nor upon desire for revenge, no matter how defensible. The interests must be determined in light of the intention of the parties at the time that they were created (Belfanc v. Belfanc, 252 App.Div. 453, 300 N.Y.S. 319, aff'd. 278 N.Y. 563, 16 N.E.2d 103).

The form of the present registration of the securities, as evidenced by the various certificates, indicates joint ownership thereof by the plaintiff and defendant. (See Matter of Zuckerman, 8 Misc.2d 57, 164 N.Y.S.2d 342; Personal Property Law, §§ 182 and 183.)

The nature of the ownership interests as reflected in the instruments may be rebutted by proof of some other intent of the parties (Marrow v. Moskowitz, 230 App.Div. 1, 242 N.Y.S. 523, aff'd. 255 N.Y. 219, 174 N.E. 460; Matter of Suter, 258 N.Y. 104, 179 N.E. 310; In re Lorch's Est., Sup., 33 N.Y.S.2d 157; Matter of Zuckerman, supra). The plaintiff has, however, failed to produce any proof, either of some agreement between the parties themselves, or other facts or circumstances which would rebut the presumption of joint ownership.

At most, she has tried to establish that she alone provided the entire consideration for the acquisition of these securities and that by reason thereof she is the sole owner of this property. Plaintiff is apparently relying upon that class of cases dealing with property held in the joint names of persons who are husband and wife where, in the absence of direct evidence of intent, certain presumptions as to ownership arise which are dependent upon the source of the consideration for the property. (See Matter of Kaupper, 141 App.Div. 54, 125 N.Y.S. 878, aff'd. 201 N.Y. 534, 94 N.E. 1095; Belfanc v. Belfanc, 252 App.Div. 453, 300 N.Y.S. 319 aff'd. 278 N.Y. 563, 16 N.E.2d 103.) It has been held that where the husband owns property and transfers it to himself and his wife during the marriage, or he furnishes the consideration for an acquisition of property in both their names, the presumption would arise, in the absence of proof to the contrary, that he intended his wife to have a survivorship right only and not a present ownership of any part of the property. (Belfanc v. Belfanc, supra; Matter of Kaupper, supra; Matter of Polizzo, 308 N.Y. 517, 127 N.E.2d 316; Matter of Keyworth, 13 Misc.2d 502, 180 N.Y.S.2d 37.) It was recently pointed out that this rule had its roots in certain archaic and now defunct common law concepts, and there has been a refusal to extend such presumption to the converse situation where the property, or the consideration therefor, flows solely from the wife. Thus, where the wife assigns to hereself and her husband property which she alone owned, or she furnishes the consideration for an acquisition of property in both names, then there is the presumption that each holds a present joint interest in the property, as would persons who are not married, and the husband is not restricted to a mere right of survivorship. (Matter of Polizzo, supra; Matter of Keyworth, supra.) Since the Polizzo decision did not overrule the presumption of a survivorship right only, where a husband furnished the entire property or consideration, a somewhat illogical inconsistency resulted. Such inconsistency has been erased, however, by legislative enactment which makes the ruel in Polizzo applicable to bothe rule in Polizzo applicable to both where an instrument or transaction creating or transferring an interest in personal property would create a joint tenancy or a tenancy in common in persons not husband and wife, it shall create such tenancy in persons who are husband and wife, irrespective of the source of the property or consideration therefor. (Domestic Relations Law, § 56-a, eff. April 20, 1959.)

Thus, even if the court accepts plaintiff's testimony that she alone furnished the consideration for the acquisition of the property, held in their joint names, this fact without more, in no way rebuts or alters the joint ownership interest reflected by the securities, but is, on the contrary, consistent with the creation of such joint ownership (Matter of Polizzo, supra), and the evidence herein indicates that such was in fact the intention of the parties when the interest was created.

I believe that the parties herein assumed full ownership of the securities when they left Europe. Their conduct and control over the property and the documentary proof are consistent with such conclusion. I find that the payment to plaintiff's brother and sister, whether made...