Murphy's Estate, In re

• Decision Date: 10 May 1965
• Citation: 259 N.Y.S.2d 228,23 A.D.2d 866
• Parties: In the Matter of ESTATE of John J. MURPHY, also known as John J. Murphy, Sr., deceased. Kathleen GLEESON, Appellant, v. John J. MURPHY, Jr., administrator of the Estate of John J. Murphy, deceased, Petitioner-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 228

259 N.Y.S.2d 228

23 A.D.2d 866

In the Matter of ESTATE of John J. MURPHY, also known as

John J. Murphy, Sr., deceased.

Kathleen GLEESON, Appellant, v. John J. MURPHY, Jr., administrator of the Estate of John J.

Murphy, deceased, Petitioner-Respondent.

Supreme Court, Appellate Division, Second Department.

May 10, 1965.

Fingar & McQuaid, White Plains, for appellant; John G. McQuaid, White Plains, of counsel.

John V. Juliano, New York City, for respondent.

Before BELDOCK, P. J., and CHRIST, RABIN, HILL and BENJAMIN, JJ.

MEMORANDUM BY THE COURT.

In a proceeding by the administrator of the estate of John J. Murphy, Sr., deceased, to discover property claimed to have been withheld by the decedent's daughter, Kathleen Gleeson, consisting inter alia of the proceeds of an account in the Home Savings Bank maintained by the decedent in the joint names of himself and his said daughter, the latter appeals from so much of a decree of the Surrogate's Court, Westchester County, entered March 11, 1963 upon reargument after a nonjury trial, as adhered to the court's original decision, which: (1) denied said daughter's application to dismiss the petition insofar as it related to said savings bank account; (2) determined that said deposit was made for the decedent's convenience only and without any intention on his part to make a gift thereof to her; (3) adjudged that the petitioner, as administrator, has title to and the right of possession of the proceeds of said bank account, with interest thereon at the legal rate from April 6, 1962; and (4) ordered said daughter to deliver said proceeds to the petitioner.

Decree, insofar as appealed from, reversed on the law and the facts, and motion to dismiss the petition insofar as it relates to the said savings bank account granted, with costs of the appeal to both the appellant daughter and the respondent-administrator, payable out of the estate. Findings of fact implicit or contained in the court's decision-opinion which may be inconsistent herewith are reversed, and new findings made as indicated herein.

In our opinion, it was error to hold that the proceeds of the joint savings account belonged to the decedent's estate. We find: (a) that there was no direct proof to rebut the presumption that a valid joint tenancy had been intended and created; and (b) that there was no substantial circumstantial proof sufficient to support an inference that the joint account had been opened for convenience only. Hence, we may not refuse to give effect to the statutory presumption and thus, by indirection, make a postdeath disposition at variance with the decedent's own valid inter vivos disposition.

BELDOCK, P. J., and CHRIST, and BENJAMIN, JJ., concur.

HILL and SAMUEL RABIN, JJ., dissent and vote to modify the decree, insofar as appealed from, with the following memorandum by SAMUEL RABIN, J., in which HILL, J., concurs:

SAMUEL RABIN, Justice.

In this discovery proceeding, the decedent's daughter, in her answer to the petition, alleged that she had title to the proceeds of the joint bank account by virtue of her status as the surviving joint tenant. The burden of proof is, therefore, on her to establish by clear and convincing evidence her title to such proceeds (Matter of Rabinowitz' Estate, 5 Misc.2d 803, 159 N.Y.S.2d 492; 3 Warren's Heaton on Surrogate's Court [6th ed.] § 236, par. 4, p. 181). Even as to joint bank accounts, the party who asserts that another has given him a joint interest in the fund has the burden of establishing to the satisfaction of the trier of the facts all the essential elements of a gift (Matter of Ricisak's Estate, 2 Misc.2d 717, 150 N.Y.S.2d 380; Matter of McCarthy's Estate, 164 Misc. 719, 299 N.Y.S. 715; 2 Bradford Butler, New York Surrogate Law and Practice, § 1467, p. 348).

Had the joint account which the decedent in 1961 established with his said daughter, payable to either or survivor, remained intact to the date of his death, the daughter would have been aided in sustaining her burden of proof by the conclusive presumption that title to the proceeds passed to her as survivor (Matter of Bricker [Krimer] v. Krimer, 13...