Zuckerman's Estate, In re
| Decision Date | 03 July 1957 |
| Citation | 164 N.Y.S.2d 342,8 Misc.2d 57 |
| Parties | Matter of the Judicial Settlement of the Account of Proceedings of Samuel T. Zuckerman as Executor of ESTATE of Shirley ZUCKERMAN, Deceased. Surrogate's Court, Nassau County |
| Court | New York Surrogate Court |
Winograd & Winograd, New York City, for petitioner-accountant.
Marvin George Florman, New York City, for objectant Betty Goldman, legatee.
A. Lionel Levy, Brooklyn, for State Tax Commission.
BENNETT, Surrogate.
The objectant to the judicial settlement of the account of the executor is a general legatee, to whom the decedent bequeathed the sum of $5,000. It is the accountant's position that the estate is insolvent and there is no property from which the legacy may be paid. The objectant asserts that certain securities now held by the accountant as his personal property, are in fact estate property.
The accountant, who is the decedent's husband, claims as his personal property certain shares of stock which were registered in the decedent's name. He also claims ownership of two bearer bonds and the proceeds of a checking account in the names of himself and the decedent. Some of the shares of stock were kept in a joint safe deposit box of the decedent and the accountant, and the rest was pledged as collateral security for a loan. The bearer bonds were also kept in the joint safe deposit box.
The accountant contends that the registration of the stocks in his wife's name was only nominal in nature, that he exercised dominion and control over the securities, and that the source of payment for the securities was his personal funds.
The record reveals that the decedent had a trading account (which had been opened for her by the accountant) with Ungerleider & Co. All of the securities in issue in this proceeding were purchased through the decedent's account. The decedent, by a written agreement, had designated her husband as agent to buy and sell securities for her account, and to receive delivery of the securities and payment of money on her behalf. Under this authorization the decedent agreed to hold Ungerleider & Co. harmless from any losses which might arise in connection with her account.
The securities were purchased with funds from joint bank accounts of the decedent and the accountant. In each instance the securities were paid for by a check of the decedent, or by a bank check made payable to her order and endorsed over.
The accountant has sought to prove that the source of monies deposited in the joint bank accounts was his personal funds. The decedent earned and received some monies, during the period in question, which were deposited in the joint bank accounts, but it would appear that the major part of the funds from which the securities were purchased had their source in the personal funds of the accountant.
The accountant has asserted that the decedent could have acquired the securities only through a gift from him, and therefore, the burden of proving such a gift must be met by the objectant. However, the accountant in this proceeding is claiming title to securities which were registered in the decedent's name, and to securities which were purchased through her account. She is deemed the owner of the securities (Personal Property Law, § 182; Peets v. Manhasset Civil Engineers, Sup., 68 N.Y.S.2d 338, 344) and the burden of proving that title is in the executor and must be borne by him. Surrogate's Court Act, § 212; Matter of Gentry's Estate, 139 Misc. 759, 249 N.Y.S. 296.
The accountant has not proved title to the securities in himself. The fact that some of the securities were paid for by monies whose original source were his personal funds is not sufficient, in and of itself, to establish title. This fact is as consistent with the premise of a gift to the decedent, as it is to the premise that she was merely a nominal registrant. Further, the fact that the accountant exercised control in the purchase and sale of the securities is not necessarily probative of title in him, but again is consistent with his status as agent under the written authorization of the decedent, which authorization was revocable by the decedent.
There is insufficient competent evidence to convince the court that title in the decedent was only nominal. The record indicates the contrary. As...
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...[4th Dept. 2017], citing Matter of Greenberg , 158 Misc. 446, 448, 286 N.Y.S. 56 [Sur. Ct., Kings County 1936] ; Matter of Zuckerman , 8 Misc. 2d 57, 59, 164 N.Y.S.2d 342 [Sur. Ct., Nassau County 1957] ; Matter of Camarda , 63 A.D.2d 837, 839, 406 N.Y.S.2d 193 [4th Dept. 1978] ).The remitta......
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