Sloane, In re, 1

• Decision Date: 16 April 1996
• Docket Number: No. 2,No. 1,1,2
• Citation: 226 A.D.2d 210,641 N.Y.S.2d 17
• Parties: In re Accounting of Leon J. SLOANE, as Preliminary Executor of the Estate of Max Sloane, Deceased. (Proceeding) In re Accounting of Leon J. Sloane, as Preliminary Executor of the Estate of Jennie Sloane, Deceased. (Proceeding) Leon J. Sloane, Petitioner-Respondent, Martin E. Sloane, Objectant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 17

641 N.Y.S.2d 17

226 A.D.2d 210

In re Accounting of Leon J. SLOANE, as Preliminary Executor

of the Estate of Max Sloane, Deceased.

(Proceeding No. 1.)

In re Accounting of Leon J. Sloane, as Preliminary Executor

of the Estate of Jennie Sloane, Deceased.

(Proceeding No. 2.)

Leon J. Sloane, Petitioner-Respondent,

Martin E. Sloane, Objectant-Appellant.

Supreme Court, Appellate Division,

First Department.

April 16, 1996.

Peter J. Schmerge, for petitioner-respondent.

Michael H. Greenberg, for objectant-appellant.

Before ROSENBERGER, J.P., and RUBIN, NARDELLI and TOM, JJ.

MEMORANDUM DECISION.

Decrees, Surrogate's Court, Nassau County (C. Raymond Radigan, S.), entered on or about February 1, 1995, which settled the account of the preliminary executor and discharged him from any and all liability or accountability, unanimously affirmed, without costs.

The preliminary executor, son of the deceased parties, sufficiently met his burden of coming forward with evidence demonstrating that his father was mentally competent to understand the choice he was making in establishing a joint account with him, and the record contains no evidence of coercion or undue influence (see Matter of Camarda, 63 A.D.2d 837, 406 N.Y.S.2d 193; Matter of Ricisak, 2 Misc.2d 717, 150 N.Y.S.2d 380; Matter of Donleavy, 41 Misc.2d 28, 30-31, 244 N.Y.S.2d 730). There was also clear and convincing evidence of an inter vivos gift by the preliminary executor's mother of her moiety interest in the joint Chemical Bank account (see, Matter of Giacalone, 143 A.D.2d 749, 533 N.Y.S.2d 457; Matter of McCarthy, 164 Misc. 719, 722-723, 299 N.Y.S. 715, affd. 254 App.Div. 827, 6 N.Y.S.2d 156), as delivery of the checks representing the balance of the funds in the account was made at her request and in her presence. Persons interested in the transaction were competent to testify pursuant to CPLR 4519 (see, Matter of Davis, 128 Misc. 622, 220 N.Y.S. 204, affd. 222 App.Div. 846, 226 N.Y.S. 797), and were not disqualified from testifying by virtue of their relationship, which goes to the weight of their testimony and not its admissibility (see, Matter of Deyoe, 227 N.Y. 350, 125 N.E. 546; Matter of Kiley, 197 Misc. 36, 93 N.Y.S.2d 850; see also, Matter of Giacalone, supra ).