Kaminsky's Will, In re
| Decision Date | 26 July 1962 |
| Citation | 230 N.Y.S.2d 954,17 A.D.2d 690 |
| Parties | In re KAMINSKY'S WILL. Application of Hannah MACIN as Executrix of the Last Will and Testament of Kate Kaminsky, deceased, for an order to discover personal property belonging to decedent. Hannah Macin, Appellant, Beatrice Reisfield, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Krieger & Scheinman, Woodbourne, for appellant. (Lazarus I. Levine, Liberty, of counsel).
Mebel & Sessa, Robert E. Mebel, Brooklyn, for respondent.
Before BERGAN, COON, GIBSON, REYNOLDS and TAYLOR, JJ.
Appeal by the executrix of the last will and testament of deceased from a decree of the Surrogate's Court of Ulster County entered in a proceeding instituted pursuant to sections 205 and 206 of the Surrogate's Court Act which sustained inter vivos gifts of $6,000 and $100 allegedly made by deceased to a daughter and granddaughter respectively.
On December 2, 1957 deceased, then about 70 years of age and long afflicted with diabetes and heart disease, fractured her hip in a fall which necessitated her immediate removal to a hospital where she was confined until her death on April 20, 1958. Besides respondent she left her surviving another daughter, the appellant herein, and a son. On the date of her admission to the hospital deceased had two accounts in the Ellenville Savings Bank in which there were on deposit to her credit the respective sums of $4,118.29 and $6,747.14. The smaller account was in the form of a Totten trust for her son; the other was in the name of deceased alone. These funds comprised a large part of her general and all of her liquid resources.
The entire proceeds of the trust account were withdrawn by respondent on January 2, 1958 and redeposited in a joint account with her husband in another savings bank. The funds in the second account were also withdrawn by her on March 31, 1958 and deposited in an account opened in her name in a third bank. The latter withdrawal was accomplished by the presentation to the pertinent passbook allegedly delivered to respondent by deceased in October, 1957 accompanied by an order on the bank signed in blank in early January and filled in by respondent on or about the date of the closing of the account. Concededly, the purpose of the first withdrawal was to provide accessible funds for the payment of the medical, nursing, hospital and other sundry expenses incurred by deceased as the result of the injury. In a subsequent accounting to the executrix respondent claimed to have expended therefrom the sum of $3,694.31 for these purposes. The second withdrawal, she testified, was necessary to carry into effect the gifts in controversy here and accordingly was so directed by deceased.
To support her claim of title to $6,100 of the funds in her possession respondent relied upon the testimony of a witness with whom and with whose daughter she had been on friendly terms for several years. This witness related two conversations which she...
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