Olin's Estate, In re

• Decision Date: 25 May 1959
• Citation: 19 Misc.2d 55,194 N.Y.S.2d 690
• Parties: In re ESTATE of Mark E. OLIN, Deceased. Surrogate's Court, St. Lawrence County
• Court: New York Surrogate Court

Page 690

194 N.Y.S.2d 690

19 Misc.2d 55

In re ESTATE of Mark E. OLIN, Deceased.

Surrogate's Court, St. Lawrence County.

May 25, 1959.

Ceylon G. Chaney, Canton, for Glenn W. Olin, Administrator.

William B. O'Connell, Ogdensburg, Committee of the person and property of Harriette M. Olin.

John Oliver, III, Canton, Special Guardian for Ernest Olin, Jr., age 14.

Glenn W. Olin, Canton, Administrator, in pro. per.

LOTT H. WELLS, Surrogate.

The question of ownership of Canton Savings and Loan Association Account No. 14933 for $2669.67, existing on the date of death in the names of the decedent and his sister, is presented on this accounting. The initial deposit was made on May 21, 1952, and the title of the account remained unchanged from the opening date to the time of death. William B. O'Connell, Committee of the person and property of Harriette M. Olin, sister, claims title to the account as surviving joint tenant, while the administrator, who is a brother of decedent, claims the account as an estate asset.

Mark E. Olin died intestate February 19, 1956. He made the initial deposit as well as all subsequent deposits, and had exclusive possession of the passbook during his lifetime. Neither party was married. There is no evidence that a signature card was signed for this account. The passbook was issued in the names of Mark or Harriette Olin. The ledger record kept by the bank consists of ledger cards about 6 by 8 inches. The ledger card for Account No. 14933 was issued in the names of Mark or Harriette Olin. It has a printed form at bottom of front side for signatures of persons signing up as depositors. It is not signed. Neither the passbook nor the ledger card exhibited words, stamped or written, to indicate that the account was a joint account payable to either or survivor. The Secretary of the bank testified, it is their practice under their rules and regulations, although not expressly provided in the By-Laws, when the initial deposit is made, to require each depositor to sign a signature card as evidence of the precise agreement between the depositors and the bank. Only one form of signature card is used. One side has a printed form for joint account, to be withdrawn 'by either before or after the death of either', the other side has a printed form for a single name account. Depositors are not required to sign the ledger card, and stamped or written words are not added to the ledger card or the passbook to indicate the form of the account based on the instructions of the signature card, except the word 'or' is added to the ledger card and passbook between the names of the depositors of accounts made in dual names. The signature card constitutes their only evidence of the depositors' intention.

The evidence produced by the Committee in support of his contention is based primarily upon the similarity, except as to signature card, to Account No. 14965 in the Canton Savings & Loan Association, in the names of Harriette M. Olin or Mark Olin, to show that Mark knowingly and consciously created and sanctioned the alleged joint account. Harriette M. Olin made the initial deposit on June 25, 1952 and with her brother, signed signature card No. 14965 under date of June 26, 1952 in the names of Harriette M. Olin or Mark Olin. The passbook was issued in the names of Harriette M. Olin or Mark Olin. The legder card for Account No. 14965 was issued in the names of Harriette M. Olin or Mark Olin. It was not signed. Neither the passbook nor the ledger card exhibited words, stamped or written, to indicate that the account was a joint account payable to either or survivor. Harriette M. Olin entered St. Lawrence State Hospital, Ogdensburg, N. Y. on October 26, 1953. On March 4, 1955, William B. O'Connell was appointed Committee of her person and property. On June 17, 1955, the Committee, with the consent of Mark, withdrew the balance of $1316.66 in Account No. 14965.

From December 15, 1953 through December 6, 1955 Mark made nine deposits in Account No. 14933, which increased it by $1180. Two deposits were made after June 17, 1955.

The record made of Account No. 14933, the passbook and the ledger card, in the names of Mark or Harriette Olin only, is not in the form to be paid to either or the survivor of them, as provided in subdivision 3 of section 239 of the Banking Law of the State of New York, which provides that '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 'shall become the property of such persons as joint tenants' and 'may be paid to either during the lifetime of both or to the survivor after the death of one of them'. It further provides: '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 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.' In re Orrico's Estate, Sur., 1945, 52 N.Y.S.2d 818.

The statutory provision is in derogation of the common law and must be strictly construed, and to come within the statute the form of the deposit must be in strict conformity with that expressed by the statute, or the statute will not apply. Matter of Fenelon's Estate, 1932, 237 App.Div. 285, 261 N.Y.S. 246, 250.

The question is, what were the terms of the deposit as made? 'The statute says that the presumption applies when 'a deposit shall be made' in the statutory form, payable 'to either or the survivor' of two depositors; that the 'making of the deposit in such form' shall * * * 'be conclusive evidence' that the depositors intended to vest title in the survivor. * * * It is not the passbook which governs, for that word is not used in the statute. It is the 'making' of the deposit in statutory form which controls. How, then, is that accomplished? We think the deposit is made when the initial deposit moneys are paid over, with instructions to credit the same in a certain form and the deposit is accepted and credited as directed.' Matter of Fenelon's Estate, 1933, 262 N.Y. 308, 310, 311, 186 N.E. 794, 795.

In Account No. 14965, the signature card did set forth, above the signatures of both depositors, the instructions referred to in Matter of Fenelon's Estate, 262 N.Y. at page 311, 186 N.E. at page 795, supra, as follows 'No. 14965

Date: June 26, 1952

'Names: Harriette M. Olin or Mark Olin

'We hereby subscribe for _____ installment, Savings, Income Shares in the

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