Wach's Estate, In re

• Decision Date: 24 May 1966
• Citation: 270 N.Y.S.2d 865,50 Misc.2d 565
• Parties: In re WACH'S ESTATE. Application of Samuel D. REIDEL, As Executor of the Estate of Schage Wachs, Deceased, for Advice and Instructions. Surrogate's Court, Rockland County
• Court: New York Surrogate Court

Page 865

270 N.Y.S.2d 865

50 Misc.2d 565

In re WACH'S ESTATE Application of Samuel D. REIDEL, As Executor of the Estate of Schage Wachs, Deceased, for Advice and Instructions.

Surrogate's Court, Rockland County.

May 24, 1966.

[50 Misc.2d 566] Samuel D. Reidel, pro se.

Torrisi & Langer, New York City, for Rose Wachs.

Richard A. Green, New York City, for Irving Wachs.

DECISION

MORTON B. SILBERMAN, Surrogate.

Petitioner is sole executor and trustee under the will of Schage Wachs, who died on February 10, 1963. Petitioner appears as attorney for himself herein. The only issue is the ownership of two mortgages, consolidated into one, on premises at Mohegan Lake, N.Y.

One of these mortgages had originally been made in the sum of $39,000 by decedent's wife, Rose Wachs, in connection with her purchase of the premises from Swintex Realty Co., Inc., in 1956. When Rose Wachs sold the premises in 1958 to Nago Holding Corp. the existing mortgage made by herself, then reduced to $16,993.56, was assigned to 'Rose Wachs and Schage Wachs'. A new mortgage for $38,006.44 was made by Nago to 'Rose Wachs and Schage Wachs, her husband', and the two were consolidated into one mortgage for $55,000. At the same time Schage Wachs subordinated to the $38,006.44 mortgage held by himself and his wife a 1951 mortgage held by him since 1954, which last mentioned mortgage was paid off about three months later. Photostats of these documents are submitted, not including however the bond which must have accompanied the $38,006.44 mortgage. The assignment, new mortgage and consolidation agreement were all recorded in the Westchester County Clerk's office on October 7, 1958 at 12:20 P.M. in liber 5960 of mortgages at pages 221, 207 and 225 respectively.

None of these instructions contains words of survivorship. Since the above mentioned bond is not submitted, it must be assumed that it does not either. The widow, Rose Wachs, claims that the consolidated mortgages belong to her. Decedent's son asserts that the effect of the above transactions was to create a tenancy in common.

The matter has been submitted on the executor's petition, supplemental affidavit and exhibits, and affidavits submitted on behalf of the widow and the son. No formal answers have been interposed nor has any testimony been taken or offered. While denominated an application for advice and instructions, this proceeding can be considered as in substance and effect a discovery proceeding. Although there is here no formal stipulation to that effect, as there was in Matter of Grossman's Estate, 134 Misc. 724, 236 N.Y.S. 630, reversed 233 App.Div. 887, 251 N.Y.S. 670, the conduct of the parties and their attorneys amounts to the same thing. It is apparent from the papers filed and from telephone conversations between all three attorneys and the court staff that the attorneys want the matter decided on the present record.

The widow claims that she purchased the property with her own funds, and for the purposes of this opinion it will be assumed that this is so. In the view which the court takes of the matter the result is the same as if they had both contributed. Grishaver v. Grishaver, Sup., 225 N.Y.S.2d 924, 930, 931. Moreover, even if both contributed to the 1956 purchase, it would have to be assumed that the premises became at that time the property of the wife since the deed ran to her alone.

Section 66 of the Real Property Law, which applies to personal property, provides:

'Every estate granted or devised to two or more persons in their own right shall be a tenancy in common, unless expressly declared to be in joint tenancy; but every estate, vested in executors or trustees as such, shall be held by them in joint tenancy. This section shall apply as well to estates already created or vested as to estates hereafter granted or devised.'

Extrinsic and even parol evidence of intent is admissible to prove that the parties were to hold the property otherwise than as tenants in common. Matter of Kaupper, 141 App.Div. 54, 125 N.Y.S. 878, affirmed 201 N.Y. 534, 94 N.E. 1095. However, the intention of the wife is the thing to be looked for here. Matter of Blumenthal's Estate, 236 N.Y. 448, 452, 141 N.E. 911, 912, 30 A.L.R. 901. Therefore the conflicting statements attributed to the husband in the petition, section V, and the affidavit of Irving Wachs, can be disregarded.

The widow does not claim that decedent was given an interest in the mortgages for convenience only or upon a resulting trust, and there is no evidence of any such arrangement. She bases her claim on the contention that, whichever died first, the other was to get them by survivorship.

The widow's submission to the executor (see petition page 5) of Matter of Larmon's Will, 212 App.Div. 273, 208 N.Y.S. 491, and Matter of Blumenthal's Estate, supra, suggests that she contends that the rule of Belfanc v. Belfanc, 252 App.Div. 453, 300 N.Y.S. 319, affirmed 278 N.Y. 563, 16 N.E.2d 103, and West v. McCullough, 123 App.Div. 846, 108 N.Y.S. 493, affirmed 194 N.Y. 518, 87 N.E. 1130, may apply to this situation. Under that rule, where the parties are husband and wife and the sole source of the property or consideration is the husband, there is a presumption that he intended, by placing it in both names, to confer on the wife a right of survivorship only, with no present interest of ownership whatever. It is an exception to section 66 of the Real Property Law, and has been termed an anomaly and an anachronism. Moskowitz v. Marrow, 251 N.Y. 380, 167 N.E. 506, 66 A.L.R. 870; Matter of Levinsky, 23 A.D.2d 25, 258 N.Y.S.2d 613, motion for leave to appeal denied 16 N.Y.2d 484, 211 N.E.2d 654; Russo v. Russo, Mun.Ct., 218 N.Y.S.2d 413; 1959 Report of Law Revision Commission, p. 361 et seq. (McKinney's 1959 Session Laws p. 1617 et seq.). The exception has been abolished by section 56--a of the Domestic Relations Law, now section 3--311 of the General Obligations Law, which however does not affect an antecedent transaction (L.1959, c. 580, sec. 2; General Obligations Law, sec. 1--203 subd. 5), which this was.

Matter of Polizzo's Estate, 308 N.Y. 517, 127 N.E.2d 316, rearg. den. 309 N.Y. 754, 128 N.E.2d 801, cert. den. sub. nom. Tymann v. Wright, 350 U.S. 911, 76 S.Ct. 194, 100 L.Ed. 799, also cited by the widow, is not helpful to her position. On the contrary, it held that the Belfanc rule did not apply to the reverse situation in which the consideration came from the wife. See also Grishaver v. Grishaver, supra. The Polizzo case must be deemed to have overruled Matter of Luippold's Estate, 146 Misc. 46, 262 N.Y.S. 522, also cited by the widow, to the extent that the latter case held the contrary. The reasoning of the Luippold case resulted from a misunderstanding of the Blumenthal case, supra, cited therein. The court in Matter of Luippold's Estate interpreted the Blumenthal case as saying that survivorship would follow if it were known that the entire consideration came from Either party. In the Luippold case there was also testimony as to the intention of the parties.

Reference to the Larmon case, supra, cited on page 5 of...