Oliverio's Will, In re

• Decision Date: 15 February 1979
• Citation: 99 Misc.2d 9,415 N.Y.S.2d 335
• Parties: In re Margaret H. OLIVERIO'S WILL. Application of Kathryn O. LOADHOLT, for a Determination as to the Validity, Construction and Effect of Disposition of Property Contained in the Last Will and Testament of Margaret H. Oliverio, Deceased. Surrogate's Court, Cattaraugus County
• Court: New York Surrogate Court

Page 335

415 N.Y.S.2d 335

99 Misc.2d 9

In re Margaret H. OLIVERIO'S WILL.

Application of Kathryn O. LOADHOLT, for a Determination as

to the Validity, Construction and Effect of Disposition of

Property Contained in the Last Will and Testament of

Margaret H. Oliverio, Deceased.

Surrogate's Court, Cattaraugus County.

Feb. 15, 1979.

Congdon, Perreault, Dohl & Wixson, Salamanca, Bert R. Dohl, Salamanca, of counsel, for petitioner

Robert Chapman, pro se.

Garry B. Chapman, pro se.

Mildred Reagle, pro se.

Susie B. Chase, pro se.

Shirley Ginnery, pro se.

Beverly Gilman, pro se.

DECISION

EDWARD M. HOREY, Surrogate.

The proceeding before the court is for construction of certain bequests made in decedent's will. The construction is sought by the administratrix c.t.a. The will was executed on February 26, 1957. The decedent died the 27th day of April, 1977. The will contained five dispositive paragraphs. Three of them are in issue. They raise novel questions in this proceeding.

From an affidavit of facts submitted without objection in support of the petition, it appears that the decedent was the second wife of Joseph Oliverio, Sr. There were two children of the first marriage of Joseph Oliverio, Sr. They were Joseph Oliverio, Jr. and Kathryn Oliverio. They were three and one year of age respectively at the time of their father's second marriage to the decedent. Although unrelated and unadopted, they were, nevertheless, raised by the decedent as a surrogate mother. The decedent referred to them during her life and in her will as her children and to their children as her grandchildren.

It is particularly significant that the will of the decedent contains no residuary clause. The two step-children of the decedent, Joseph and Kathryn, both survived her, but Joseph has subsequently died. Distributees that will take in the event of her intestacy are nineteen (19) in number. They are a surviving brother, John Chapman; 6 nieces and nephews who are the children of a deceased brother, Harry Chapman; 6 nieces and nephews who are the children of the deceased sister, Grace Scott; 6 nieces and nephews who are the children of a deceased sister, Dorothy Chapman Hadley.

Paragraph "FOURTH" of the decedent's will bequeathed in part:

". . . All monies that I have on deposit in the Salamanca Trust Company to my said daughter, Kathryn Mary Donahoo and to my son, Joseph Oliverio, in equal shares." (Italics added)

At the time of her death, decedent had the sum of $7,131.70 in a savings account in her name at the Salamanca Trust Company. In addition, she had the sum of $4,000 in a safe deposit box in her name at that bank.

No question is raised concerning the savings account. Clearly, the monies in that account passed in equal shares to the step-children as named legatees.

The $4,000 in the decedent's safe deposit box presents a different issue. For decision is the question of whether or not monies in a decedent's safe deposit box in a specified bank are properly considered to be "on deposit" in that bank. If they are so considered they pass to the beneficiaries named in the will. Contrariwise, they do not.

The research made by counsel for the petitioner and this court's research lead to the conclusion that the area for consideration is virgin territory. Surprisingly, no determination of the issue presented has been found in the decisional law of this state. Only two cases have been discovered in other jurisdictions which even approximate a determination of the issue.

Decisive of the issue is the meaning to be given to the phrase "on deposit".

Recourse to etymology discloses that the word "deposit" had its origin in the Latin noun "depositum". Under Roman Law, a "depositum" was a bailment of a specific item. Two features attended the bailment. The specific item was to be returned in kind and a depositary received no consideration beyond the possession of the bailed item. It was a gratuitous or naked bailment. "Properly and originally all deposits (were) of this description ". If consideration were paid for the bailment, under Roman Law, the proper word was not a "depositum", but rather a "locatio". If the owner of the property pays for its custody or care, it is a 'locatio custodiae'. If on the other hand the bailee pays for the use of it, it is a 'locatio rei' ". (Italics added). See historical treatment of meaning of "deposit" by Supreme Court of Iowa in Officer v. Officer, 120 Iowa 389, 94 N.W. 947.

In an early decision, our Court of Appeals also traced the history and meaning to be accorded "a deposit". In Curtis v. Leavitt, 15 N.Y. 9 (1857), a decision two hundred and ninety-seven pages in length, the Court of Appeals, at pages 166 through 167, said:

"But what are deposits, and what, in commercial law, are the obligations which are, or may be, assumed by the parties to that species of contract? Originally, a deposit of money was made by placing a sum of money in gold or silver with a bank or other depository, to be returned, when called for, in the same indentical (sic) coin, and without interest, the depositor paying the depositary compensation for his care. But, for more than a century prior to the passage of the act in question, the term 'deposit' had come to mean quite a different transaction, as to the rights and liabilities of the parties to it. It became customary to deposit money for a particular period, and on interest, or payable at certain prescribed periods after notice. In short, the term deposit became a symbolical word to designate not only a deposit, in its original sense, but also that class of contracts where money in any of its forms, as specie or bank Bills, was placed in the hands of banks or bankers, to be returned in other money, on call or at a specified period, and with or without interest." (Italics added)

The first definition of a "deposit" found in Black's Law Dictionary, Fourth Edition, is the following: "a naked bailment of goods to be kept for the depositor and without reward to be returned when he shall require it". There follows additional definitions which would include money placed in a bank in the typically current saving or checking account.

It is this court's view that the original meaning of a "deposit" embraces the present transaction attending the use of a safe deposit box in a bank. Money or valuables are deposited in kind for safekeeping with the bank as the depositary. The obligation of the depositary is to insure the return of those items in kind when requested or required by the depositor. Typically, only a minimal rental is charged.

The fact that the original meaning of "deposit" has expanded over the years to include an additional meaning of placing monies in a bank to be returned, not in kind, but in other money and with or without interest, does not militate against the original meaning or in any way vitiate it. The meaning of "deposit" has merely been expanded and extended. The court believes it currently includes "not only a deposit in its original sense", which was a bailment of money or property to be returned in kind, "but also that class of contracts" between a bank and a depositor which create the debtor and creditor relationship that attends the current checking and savings accounts. See Curtis v. Leavitt, 15 N.Y. 9 at 167. Thus, by definition, the monies in the safe deposit box are properly construed to be "on deposit".

Further, a reading of the will discloses that decedent's testamentary scheme and "dominant purpose" was to benefit her two step-children, Joseph and Kathryn. To delimit the meaning of the phrase "on deposit at the Salamanca Trust Company" to exclude the monies in the safe deposit box there would violate the established rule that a will should be construed to benefit those persons who, by the terms of the will, are shown to be the foremost objects of her bounty. Matter of Fabbri, 2 N.Y.2d 236 at 240 and 242, 159 N.Y.S.2d 184 at 187, 189, 140 N.E.2d 269 at 271 and 272; Matter of Dammann, 12 N.Y.2d 500, 505, 240 N.Y.S.2d 968, 970, 191 N.E.2d 452, 453.

Finally, there is a general maximum of construction that the law favors testacy over intestacy. Haug v. Schumacher, 166 N.Y. 506 at 515, 60 N.E. 245 at 247, and see Carmody Wait 2d, Vol. 27, Sec. 162:27 and cases cited.

In the instant case, it appears that the decedent included in her several bequests and devises all property which she owned at the time of executing her will with the possible exception of the money in the safe deposit box. Since the amount of that money would have represented a substantial portion of the decedent's worldly goods when her will was executed, it is reasonable to assume she had its disposition present in her mind. This view is fortified by the absence of any residuary clause to otherwise dispose of such money. "Indeed it has been said that the absence of a residuary clause strengthens the presumption that the decedent intended by other provisions of his will to dispose of his entire property". Warren's Heaton on Surrogate's Court, Vol. 7, Sec. 23, para. 3(a).

Consistent with the rule that intention is to be ascertained by what was apparently or presumably in the mind of a testator at the time of making the will, Matter of Hoffman, 201 N.Y. 247, 255, 94 N.E. 990, 993, the court finds it reasonable to presume that the decedent intended to make an effective and valid will disposing of all property which she then owned, specifically including the money in the safe deposit box.

The court is of the opinion that the two cases reported in foreign jurisdictions are properly distinguished from the instant one.

In re Schmidt's Estate, 38 N.J.Super. 524, 119 A.2d 786 (1956) the New Jersey Appellate Court determined that money found in a safe deposit box was not included in a bequest of ". . . any cash in any bank account or bank accounts . . .". This court is of the opinion that a bequest of cash "in any bank account" is markedly different than one of cash "on deposit"...