In re the Estate of Beck

98 A.D.2d 860, 470 N.Y.S.2d 808, 1983 N.Y. App. Div. LEXIS 21176

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 8, 1983
• Status: Published

Opinions

— Appeal from an order of the Surrogate’s Court of Columbia County (Oberwager, S.), entered December 1, 1982, which denied and dismissed the State of New York’s objections to the account of the administratrix of the estate of Herbert Beck. Decedent, who died intestate and apparently left no known heirs, was an unpaid co-worker at Camphill Village U.S.A., Inc., a farm community for mentally handicapped adults, from 1963 until his death on July 17,1981. On November 20,1969, he opened a regular savings account at the predecessor of Key Bank, N.A., creating a Totten trust in his name in trust for Camphill (see Matter of Totten, 179 NY 112). By letter dated November 29,1973, decedent informed Camphill of the account’s existence and advised that, at his death, the money in the account would become Camphill’s property. Thereafter, on April 15, 1980, decedent withdrew the funds in this account and (1) transferred $8,000 to a higher interest account, a certificate of deposit opened in his name individually, (2) transferred $3,930 to his already existing checking account, and (3) took $50 in cash. Testimony at the Surrogate’s hearing indicated that decedent made the transfer to the higher interest account at the instigation of a bank teller who was competing for a teller training program incentive award. Decedent was not asked by the bank whether he wished to open the new account individually or in trust, nor did he offer this information. The Surrogate found that a revocation of the Totten trust was not intended and thus Camphill was entitled to the funds remaining in the interest-bearing account. This appeal ensued. There being no heirs, the State also made claim against the estate, maintaining that the funds in this particular account should escheat to the State. Legislation effective September 1, 1975, dealing with funds on deposit in Totten trusts on or after that date (EPTL 7-5.7) and designed to establish objective criteria for determining whether such an account has been revoked by the depositor through actions taken while alive (Rohan, Practice Commentary, McKinney’s Cons Laws of NY, EPTL 7-5.1 [1982-1983 Supp], pp 139-141), dictates a reversal in this case. The transfer of funds on April 15, 1980 was governed by the new legislation and hence the subjective intent of the deceased is irrelevant; withdrawal of the funds from the Totten trust account effected a revocation of the trust (EPTL 7-5.2). The administratrix’ argument that decedent’s letter of November 29, 1973 placed the trust beyond revocation is not persuasive. Although this letter must be interpreted under the law prior to the legislation, thus making decedent’s subjective intent relevant, the evidence is that decedent intended to leave Camphill whatever sum was in the account at the time of his death. Nothing in the letter suggests that the Totten trust was to be irrevocable. That decedent did not intend, by this letter, to make the Totten trust irrevocable is also borne out by the withdrawal of $3,930 which decedent deposited in his personal checking account. If, as the record suggests, the bank acted inadvertently when it issued the certificate of deposit in decedent’s name alone rather than in the name in which the regular savings account had been carried, then Camphill’s remedy would appear to be to proceed against the bank. Order modified, on the law and the facts, to the extent that the claim of Camphill Village U.S.A., Inc., is disallowed and the Attorney-General’s objection No. 1 is allowed, and, as so modified, affirmed, without costs. Mahoney, P. J., Yesawich, Jr., and Weiss, JJ., concur.