Szabo's Estate, In re

• Decision Date: 07 July 1961
• Citation: 217 N.Y.S.2d 593,10 N.Y.2d 94,176 N.E.2d 395
• Parties: , 176 N.E.2d 395 In the Matter of the ESTATE of Elizabeth SZABO, Deceased, Wolfgang S. Szabo, Appellant; Honey Wiesel, as Executrix of Elizabeth Szabo, Deceased, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 593

217 N.Y.S.2d 593

10 N.Y.2d 94, 176 N.E.2d 395

In the Matter of the ESTATE of Elizabeth SZABO, Deceased Wolfgang S. Szabo, Appellant; Honey Wiesel, as Executrix of Elizabeth Szabo, Deceased et al., Respondents.

Court of Appeals of New York.

July 7, 1961.

Hyman Roffe, New York City, for appellant.

Abraham J. Hirschsprung, New York City, for Honey Wiesel, executor, respondent.

Joseph Aranow, Brooklyn, for Robert Ullman and others, respondents.

John E. Quinn, New York City, special guardian for infants, respondents.

FOSTER, Judge.

This proceeding was brought under section 206-a of the Surrogate's Court Act to compel the respondent executrix to deliver to petitioner, who is the appellant here, a certificate for 366 shares of stock of the American Telephone & Telegraph Company, claimed to have been the subject of a gift inter vivos. The Surrogate's Court of Bronx County dismissed the petition and the Appellate Division, First Department, unanimously affirmed without opinion the order of the Surrogate's Court. The appeal is here by permission.

Decedent died testate on May 26, 1959, in the City of New York, leaving a son, who is the petitioner here, resident in the State of Israel, and a daughter, a resident of New York. She also left seven grandchildren, three of them being children of petitioner, and the remaining four, children of her daughter. Under her will decedent bequeathed her residuary estate in trust for her grandchildren.

Prior to April 24, 1959 decedent was the sole owner of 122 shares of the common stock of the telephone company. On April 10, 1959 the shares of the company were split 3 for 1, effective as of April 24, 1959, and after that date each old certificate represented one third of its former value and one third of its former equity interest in the corporation. Certificates representing the remaining two-thirds interest were to be prepared and forwarded by the company on May 29, 1959, which was three days after decedent died.

Prior to April 27, 1959, decedent received a communication from the company advising her of the stock split, and on that date she executed an assignment to petitioner and herself as joint tenants on the back of one of the four certificates representing 50 of her 122 shares. She directed a niece, her executrix herein, to have the company put petitioner's name on all of her stock, presumably as a joint tenant with the right of survivorship, although there is some question as to whether she intended an absolute gift. However, she also directed that the transfer of the stock was to be held up until the new certificate was available. When the date arrived she was dead and the transfer of the stock to a joint tenancy on the company's books was not made until after her death.

The question presented is whether decedent made a valid inter vivos gift to petitioner, as to any or all of the stock, so that he is entitled to the right of ownership as a surviving joint tenant. After a trial the Surrogate dismissed the petition on the ground that the certificate of stock was not issued until after the death of the testatrix, and, therefore, petitioner's claim of ownership as to any or all of the stock as a surviving life tenant was without merit.

The requisites for a valid gift inter...