Krycun's Estate, In re

• Decision Date: 28 May 1969
• Citation: 249 N.E.2d 753,301 N.Y.S.2d 970,24 N.Y.2d 710
• Parties: , 249 N.E.2d 753 In the Matter of the ESTATE of Johanna KRYCUN, Deceased. Edward JAWORSKI et al., Appellants, v. Leo YACYKEWYCH et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 970

301 N.Y.S.2d 970

24 N.Y.2d 710, 249 N.E.2d 753

In the Matter of the ESTATE of Johanna KRYCUN, Deceased.

Edward JAWORSKI et al., Appellants, v. Leo YACYKEWYCH et al., Respondents.

Court of Appeals of New York.

May 28, 1969.

August J. Ginocchio, Babylon, and Stephen J. Jarema, New York City, for appellants.

Louis Zimmerman, New York City, and Ernest L. Holbrook, for Leo Yacykewych, respondent.

Jerome I. Lessne and Robert J. Silberstein, New York City, for Yuri V. Chemokhud, respondent.

SCILEPPI, Judge.

The order appealed from should be reversed for the reasons stated by Justice MUNDER in his dissenting opinion at the Appellate Division. We merely add the following to further amplify our position.

As was stated in Matter of Totten, 179 N.Y. 112, 126, 71 N.E. 748, 752, 70 L.R.A. 711: 'In case the depositor (of a Totten Trust) dies before the beneficiary without revocation, or some decisive act or declaration of disaffirmance, the presumption arises that an absolute trust was created as to the balance of hand at the death of the depositor.'

This presumption may be overcome, however, if the will of the depositor manifests a clear intention to revoke the trust (Matter of Deneff, 44 Misc.2d 947, 255 N.Y.S.2d 347; Matter of Vetroock, 34 Misc.2d 1073, 230 N.Y.S.2d 485; Matter of Richardson's Estate, 134 Misc. 174, 235 N.Y.S. 747; Walsh v. Emigrant Ind. Sav. Bank, 106 Misc. 628, 176 N.Y.S. 418, affd. 192 App.Div. 908, 182 N.Y.S. 956, affd. 233 N.Y. 512, 135 N.E. 897).

In the case at bar, the testatrix had six separate bank accounts, four of which were in the Totten Trust form and two in her name alone. The language in paragraph SEVENTH of the will relied upon the respondent states: 'I give and bequeath any and all funds on deposit to my credit, in any bank or trust company or similar financial institution'. The majority of the Appellate Division held that this language, in itself, was 'clear and absolute to show the intention of the testatrix to revoke any prior trust bank accounts and to have such proceeds become part of the assets of the estate'. We do not agree.

If the money on deposit in the four trust accounts comprised all or most of the assets of the estate or if the trust accounts were the only bank accounts in the decedent's name, that would be a strong indication that the testatrix intended to revoke the Totten Trusts. Such, however, was not the case. The money on deposit in the trust accounts only comprised a little more than one third of the total estate, and as indicated earlier the testatrix had two bank accounts in her name alone. We conclude, therefore, that the language in...