Miller v. Wrona (In re Porianda's Estate)

• Decision Date: 02 June 1931
• Parties: In re PORIANDA'S ESTATE. MILLER v. WRONA.
• Court: New York Court of Appeals Court of Appeals

256 N.Y. 423

176 N.E. 826

In re PORIANDA'S ESTATE.MILLER

v.WRONA.

Court of Appeals of New York.

June 2, 1931.

Proceeding by Charles M. Miller, as administrator, for the discovery of property alleged to belong to the estate of Mary Porianda, deceased, opposed by Annie Wrona. From an order of the Appellate Division of the Supreme Court in the Second Judicial Department (230 App. Div. 788, 244 N. Y. S. 915), which affirmed a decree (135 Misc. Rep. 389, 237 N. Y. S. 715) dismissing the petition, the administrator appeals.

Reversed, and new hearing ordered.

Appeal from Supreme Court, Appellate Division, Second department.

Abraham Benedict, of New York City, and David Gorfinkel, of Yonkers, for appellant.

William R. Hogan, Charles J. Wallace, and John A. Wallace, all of Yonkers, for respondent.

KELLOGG, J.

Mary Porianda was the owner of a deposit of $5,113.35, credited to her individual account in the Yonkers Savings Bank. On the 24th day of October, 1928, she sent a letter to the bank, requesting it to add the name of her sister, Annie Wrona, to the account, ‘making it a joint account during life; either one to have full power to deposit therein or draw therefrom, and the balance payable to the survivor, in case of death.’ In accordance with her request, the account was credited to Mary Porianda or Annie Wrona, ‘Joint account, either survivor to take all.’ On January 7, 1929, during the lifetime of Mary Porianda, Annie Wrona withdrew $3,000from the joint account and deposited the same in the Yonkers National Bank to the credit of five accounts, one in her own name, two in the name of her son John, and two in the name of her son Mike. Mary Porianda afterwards died, and the administrator of her estate, in discovery proceedings, now seeks to recover possession of the sums withdrawn. The surrogate has held that the form of the deposit conclusively determined that there was a joint tenancy created; that, after the death of Mary Porianda, the withdrawn moneys became the absolute property of Annie Wrona, the survivor; that the proceedings should be dismissed. He was of the opinion that the evidence given, in support of the contention that no joint tenancy was intended by the depositor was wholly immaterial, citing Moskowitz v. Marrow, 251 N. Y. 380, 387, 167 N. E. 506, 508, 66 A. L. R. 870.

We stated in the case cited that section 249 of the Banking Law (Consol. Laws, c. 2) sets up two presumptions. The first, reversing the common-law rule, requires a holding, in the absence of other proof, that a deposit made in the names of the depositor and another person ‘in form to be paid to either or the survivor of them’ becomes ‘the property of such persons as joint tenants.’ This presumption is not conclusive, and may be overcome by proof that the depositor, when making the deposit, had no intention to create a joint tenancy. The second presumption, that title passes to the survivor, where applicable, is irrefutable by proof, and therefore a rule of substantive law. The form of the deposit is ‘conclusive evidence,’ in any action or proceeding to which either the ‘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.’ To be applicable, however, there must have been survivorship; and, even then, its application is limited to the moneys still on deposit in the savings bank, credited to the depositors under the original formula ‘payable to either or the survivor.’ This presumption does not apply ‘in respect of any moneys withdrawn by either during life’ (Moskowitz v. Marrow,...