Strail v. Sprague (In re Suter's Estate)

• Decision Date: 05 January 1932
• Citation: 179 N.E. 310,258 N.Y. 104
• Parties: In re SUTER'S ESTATE. STRAIL v. SPRAGUE.
• Court: New York Court of Appeals Court of Appeals

258 N.Y. 104

179 N.E. 310

In re SUTER'S ESTATE.STRAIL

v.SPRAGUE.

Court of Appeals of New York.

Jan. 5, 1932.

Proceedings by Jane E. Strail to establish a claim against the estate of Jane E. Suter, deceased, opposed by Sarah J. Sprague as administratrix. A decree of the surrogate dismissing the claim on the merits (138 Misc. Rep. 85, 245 N. Y. S. 636) was affirmed by the Appellate Division (232 App. Div. 45, 248 N. Y. S. 624) and claimant by permission appeals.

Affirmed.

Appeal from Supreme Court, Appellate Division, Fourth department.

Charles B. O'Connell, of Rochester, for appellant.

Jay A. Smith and Peter G. Smith, both of Webster, for respondent.

POUND, J.

On October 16, 1924, the decedent, Jane E. Suter, had on deposit to her credit in the Security Trust Company of Rochester $2,142.96. She transferred this deposit to an account in the name of herself and Jane E. Strail, the claimant, with the words ‘either or survivor may draw’ stamped on the bank book at the head of the account. Decedent drew from the account $469.65 on February 24, 1927, and $445.13 on February 18, 1925. She died February 19, 1928. Claimant has drawn the balance of the deposit, and no question is raised as to her right to do so. She claims, however, a share in the amount of the withdrawals and the accumulations thereon, which the courts below have denied to her.

The presumption of joint tenancy arising out of the original deposit (Banking Law; Consol. Laws, c. 2, § 198), rebuttable during the life of either joint owner, has not been affected by the evidence. Decedent and claimant became joint owners of the entire deposit. The incident of the right of survivorship is a characteristic of joint tenancy, but a joint tenancy may be terminated or severed before such right accrues by the act of either joint tenant. A joint tenant, as an incident to his tenure, may always terminate the joint tenancy by transfer or conveyance of his interest. Attorney General v. Clark, 222 Mass. 291, 110 N. E. 299, L. R. A. 1916C, 679, Ann. Cas. 1917B, 119. Decedent and claimant each had the right as a joint owner of the bank deposit to withdraw a moiety, or less than a moiety for her own use, and thus destroy the joint tenancy as to such withdrawals. Joint ownership of a bank deposit does not differ from any other joint ownership. Nothing in the Banking Law prevents one joint owner from destroying the joint ownership in the entire deposit to the extent of his withdrawals of no more than his equal share for his own use, although, if the entire account had been withdrawn, the result might have been otherwise. The cases...