Straut v. Hollinger.
| Decision Date | 16 January 1947 |
| Docket Number | 147/152. |
| Citation | 50 A.2d 478 |
| Parties | STRAUT v. HOLLINGER. |
| Court | New Jersey Court of Chancery |
Suit by Helen J. Straut against Leslie T. Hollinger, executor of the last will and testament of Herbert S. Hollinger, and as legatee under such will and individually, to compel payment of checks to the order of complainant drawn by testator before his death on a joint account standing in his name and the name of named defendant individually.
Order dismissing the bill advised.
Syllabus by the Court.
Where testator drew checks to the order of complainant on a joint account standing in his name and that of defendant, and the funds on deposit in the account are payable to either or payable to either or to the survivor, and the checks so drawn are not presented to the bank for payment until after testator's death, held, the defendant, the surviving joint tenant, is entitled to the funds in the joint account and the testator's estate cannot control the disposition of the funds or direct payment of moneys therefrom.
John J. Deeney, of Teaneck (George F. Losche, of Hackensack, of counsel), for complainant.
Keron D. Chance, for defendant.
EGAN, Vice Chancellor.
On or about Agust 31, 1943, Herbert S. Hollinger died and left a last will and testament in which he named his nephew, the defendant Leslie T. Hollinger, executor thereof, and residuary legatee.
In the third paragraph of his will the testator directed:
The envelope containing the check dated October 12, 1942, referred to in the will was addressed to the complainant and was for $500. The decedent, a few days before his death, drew a check dated August 27, 1943, in her favor in the amount of $200. Both checks were drawn on a joint account standing in the names of the decedent testator Herbert S. Hollinger and the defendant Leslie T. Hollinger.
The checks were not presented to the bank for payment during testator's lifetime. The defendant, Leslie T. Hollinger, after Herbert's death, refused to honor testator's request aforesaid and stopped payment on the checks claiming the moneys in the account belonged to him as the surviving joint tenant. He takes the position that the funds in the joint account are not part of decedent's estate. The complainant instituted an action in the New Jersey Supreme Court to recover the amount of the checks. The action came on for trial in the Bergen County Circuit Court before the Hon. J. Wallace Leyden, who directed a non suit at the conclusion of plaintiff's case.
The defendant contends (1) that the complainant's remedy, if any, is at law; (2) and that she having elected to pursue her remedy there, is bound by her election; (3) that the checks made by the decedent Herbert S. Hollinger became void upon his death, they not having been presented for payment, since decedent's interest in the bank account upon which the checks were drawn terminated at his death; (4) that complainant is not competent to testify concerning any transaction with the decedent since suit is brought against defendant in a representative capacity; and (5) that the checks were intended as gifts and as such are void since dominion and control of the subject matter of the gifts did not pass to complainant prior to death of decedent.
I believe in the circumstances the defendant should prevail in this proceeding. N.J.S.A. 17:9-5 appears to be pertinent. It provides that:
‘When a deposit has been, or shall be, made in any bank or trust company transacting business in this state, in the names of two persons, payable to either, or payable to either or to the survivor, the balance of any part thereof to the credit of said account including interest or dividends thereon may be paid to either of said persons during the life of both and in case of the death of either of said persons the balance to the credit of said account including any dividends or interest thereon shall be paid to the survivor, and the legal representatives of the one dying shall not have any claim or...
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Dulany v. Taylor
...199 So.2d 564 [ (La.App.) ] application den. 202 So.2d 652 [ (La.1967) ]; Malloy v. Smith, 265 Md. 460 [ (1972) ]; Straut v. Hollinger, 50 A.2d 478 [ (1947) ]; In re Seyffert's Estate, 192 N.Y.S.2d 148 [ (1959) ].12 Appellees attribute the following "wrongs" to Mr. Dulany:A) He allegedly im......
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Malloy v. Smith, 313
...re Enders' Estate, 39 Misc.2d 207, 240 N.Y.S.2d 388 (1963); In re Yale's Estate, 164 Kan. 670, 191 P.2d 906 (1948); Straut v. Hollinger, 139 N.J.Eq. 206, 50 A.2d 478 (1947); and In re Brown's Estate, 159 Kan. 408, 155 P.2d 445 (1945) are all readily distinguishable, because all involved che......
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