Ricisak's Estate, In re

• Decision Date: 17 February 1956
• Citation: 150 N.Y.S.2d 380,2 Misc.2d 717
• Parties: In re John RICISAK'S ESTATE. Surrogate's Court, New York County
• Court: New York Surrogate Court

Page 380

150 N.Y.S.2d 380

2 Misc.2d 717

In re John RICISAK'S ESTATE.

Surrogate's Court, New York County.

Feb. 17, 1956.

Samuel Sweetbaum, New York City (Arnold S. Greene, New York City, of counsel), for Julia Krulish, executrix, petitioner.

Mortimer Braveman, New York City (Louis Kaplan, New York City, of counsel), for Anna Hickis and Robert Ricisak, respondents.

Peter Campbell Brown, Corp. Counsel, New York City (Morris B. Asbel, New York City, of counsel), for City of New York, Department of Hospitals, respondent.

COLLINS, Surrogate.

The testator died on January 19, 1954, leaving a will dated July 13, 1944. By its terms he disposed of his entire estate equally among his two daughters, Julia Krulish and Anna Hickis, and a son, John Ricisak. In the event any child predeceased him the share of the deceased child was to go to the issue of that child. His son did predecease him survived by a son Robert Ricisak. Mrs. Krulish was appointed executrix of his estate. She is now accounting and swears that no estate assets came into her hands as executrix.

Testator's other daughter and his grandson filed objections to the account. They claim that the executrix failed to account for moneys approximating $16,600 which belonged to the testator and which consisted of social security payments, mortgage, payments, savings bank accounts and United States savings bonds.

The moneys in the savings bank were moneys which testator had originally inherited from his predeceased wife. He had also received through his wife's estate a mortgage on certain real property located in Jackson Heights, Queens, and a number of United States savings bonds.

At the date of his death the testator was eighty-one years old. Aside from writing his name he could neither read nor write English and spoke English indistinctly. He retired from employment approximately ten years prior to his death. He lived alone for most of that time in an apartment except for about 116 days during 1952 when he was in a hospital. The accountant, Mrs. Krulish, testified that the testator kept his bank books in his possession and, except during the period he was confined to the hospital, whenever he wanted to deposit or withdraw moneys she went with him to the bank for that purpose. The only income he had for the last ten years of his life were the social security payments and payments of installments and interest on the mortgage. Checks for these payments were made payable to him, were endorsed by him and were then deposited by Mrs. Krulish in accounts in her own name. She testified that whenever she made deposits in her own accounts her father was physically present and he kept the bank books in his possession. Mrs. Krulish has failed to explain the circumstances surrounding the deposits by her of the social security moneys and the payments made on the mortgage except to state that testator had made a gift of them to her.

The testimony clearly indicates that a fiduciary relationship existed between the testator and his daughter. Because of his illiteracy and his advanced years, the testator was wholly dependent on Mrs. Krulish and relied entirely upon her to take care of his financial matters. The burden was cast upon her of coming forward with evidence to show that there had been no abuse of such relationship and that the transactions were free from fraud or undue influence. Allen v. LaVaud, 213 N.Y. 322, 107 N.E. 570. This she has not done. Any advantage therefore acquired by Mrs. Krulish as the dominant party in this fiduciary relationship requires the court to carefully scrutinize all transactions involving the moneys in the banks. The evidence that the bank books, which were in the name of Mrs. Krulish, were kept by the testator and that he was present on every occasion that a deposit of the social security moneys and the mortgage payments was made shows an intention on his part to retain title and possession of the moneys and is wholly inconsistent with an intention to make a valid gift. Mrs. Krulish's claim of gift rests solely upon the bare fact that the deposits of testator's money were made in accounts in her own name. Proof of the essential elements of a gift of these moneys is entirely lacking. Matter of Van Alstyne, 207 N.Y. 298, 308, 100 N.E. 802, 805. The court holds that the social security payments amounting to $2,858.73 and the mortgage proceeds amounting to $2,545.50 are assets of the decedent and the accountant is directed to return them to the estate.

On June 10, 1944 the testator opened two accounts in his own name, one (No. 131,150) in the Central Savings Bank and the other (No. 1,730,586) in the Bowery Savings Bank. Both of these accounts were closed out on March 29, 1951. At that time the balance in the Central Savings Bank was $2,195.79 and the balance in the Bowery Savings Bank was $1,797.23. On April 2, 1951 the proceeds of both accounts, totaling $3,993.02, were deposited in a new account (No. 21,101) in the Fourth Federal Savings and Loan Association of New York, in the names of 'John Ricisak or Julia Krulish, as joint tenants with the rights of survivorship and not as tenants in common.' This account (No. 21,101) was closed out on April 24, 1952, about three weeks later, by a withdrawal slip signed only by Mrs. Krulish. The balance then was $3,767.42. Thereafter and on the same day and in the same bank a new account (No. 22,289) was opened by Mrs. Krulish in her own name, in trust for Evelyn Krulish, who was her daughter, and the proceeds were redeposited in such new account.

Section 239 of the Banking Law provides that where a deposit in a savings bank is in the form of a joint account, the moneys belong to the depositors as joint tenants and the...