In re Juedel's Will

• Decision Date: 28 February 1939
• Citation: 280 N.Y. 37,19 N.E.2d 671
• Parties: In re JUEDEL'S WILL. In re HEITMAN.
• Court: New York Court of Appeals Court of Appeals

280 N.Y. 37

19 N.E.2d 671

In re JUEDEL'S WILL. In re HEITMAN.

Court of Appeals of New York.

Feb. 28, 1939.

Proceeding in the matter of the application of John Heitman, one of the executors of the last will and testament of Alwin Juedel, also known as Alvin Juedel, deceased, to discover certain property of deceased said to be withheld by Doris Harmon and another. From an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered November 14, 1938, 255 App.Div. 863, 7 N.Y.S.2d 602, reversing a decree of the Surrogate's Court, and dismissing the proceeding, executor appeals.

Reversed and decree of Surrogate's Court modified, and as modified affirmed. Appeal from Supreme Court, Appellate Division, Second department.

Abraham Lillienthal and Leon Finkelstein, both of New York City, for appellant.

Arthur Hutter and George Weiss, both of New York City, for respondents.

LOUGHRAN, Judge.

Prior to February 3, 1937, Alwin Juedel had on deposit with the Lincoln Savings Bank of Brooklyn, $5,278.52 in an account standing in his own name. On that date the deposit was transferred by the bank to a new account in the name of Mr. Juedel and his daughter, Doris Harmon, ‘for either or survivor.’

Mr. Juedel died December 25, 1937. This proceeding was brought by his executor to compel discovery of $5,000 which in the preceding April had been withdrawn from the joint account by Doris Harmon. See Surrogate's Court Act, §§ 205, 206. George I. Harmon, the husband of Doris, was made a respondent with her, she having redeposited $2,500 of that sum in her name as trustee for him.

Subdivision 3 of section 249 of the Banking Law (Consol.Laws, ch. 2) was invoked by the respondents. It is thereby provided: ‘When a deposit shall be made by any person in the names of such depositor and another person and in form to be paid to either or the survivor of them, such deposit and any additions thereto made by either of such persons after the making thereof, shall become the property of such persons as joint tenants, and the same together with all dividends thereon shall be held for the exclusive use of such personsand may be paid to either during the lifetime of both or to the survivor after the death of one of them. * * * The making of the deposit in such form shall, in the absence of fraud or undue influence, be conclusive evidence, in any action or proceeding to which either such savings bank or the surviving depositor is a party, of the intention of both depositors to vest title to such deposit and the additions thereto in such survivor.’ Repealed, L.1938, ch. 352, § 1, now covered by § 239, subd. 3.

These provisions are part of article 6 of the statute which relates to savings banks. Cf. § 134, subd. 3. The effect thereof is to affix to a savings bank account, when opened in the form so prescribed, a presumption that the interest of the depositors is that of joint tenants. ‘Upon the death of one of the depositors, this presumption becomes conclusive in favor of the survivor in respect of any moneys then left in the account. It continues to be a mere presumption in respect of any moneys previously withdrawn.’ Marrow v. Moskowitz, 255 N.Y. 219, 221, 174 N.E. 460. The $5,000 fund drawn out by Doris Harmon was thus in the first place to be taken to be her own, in virtue of her presupposed status as surviving joint tenant. The executor, however, had the right to come forward with proof sufficient to overcome this statutory initial imputation of title against him. As to these moneys that had been withdrawn in the testator's lifetime, the statute still left room for competent evidence ‘that the tenancy created at the opening of the account was in truth something different from the tenancy defined by the presumption.’ Marrow v. Moskowitz, supra, page 222, 174 N.E. page 460.

In their answer to the executor's petition, the respondents asserted ownership of the entire deposit ‘by reason of the fact that on or about Februay 3rd, 1937, the deceased, Alwin Juedel, opened a joint account in his own name and the name of the respondent Doris Harmon in the Lincoln Savings Bank;’ and Doris Harmon thereby alleged ‘that the account was opened for the purpose of making a gift to her in the sum of $5,278.52.’ The executor introduced evidence that when the testator's will was read to his four children, Doris Harmon said: ‘Well, there is another account...