In re the Estate of Hess

12 Mills Surr. 91, 85 Misc. 659, 148 N.Y.S. 1054

• Court: New York Surrogate's Court
• Decided: May 15, 1914
• Status: Published

Opinion

Schulz, S.

The moving party, the committee of an incompetent, applies for an order directing the public administrator to deliver to him, as such committee, a savings bank book issued to “ George Hess, or Emma Hess,” the former being deceased and the latter being an incompetent and not the wife of the decedent, upon the ground that the same and the moneys whose deposit is evidenced thereby are the property of the incompetent and form no part of the decedent’s estate. The public administrator has possession of this book with other property alleged t® belong to the decedent as also of a document purporting to be the will of the decedent. No letters have been issued to him upon the estate of the decedent, nor has the will been offered for probate.

The right of the committee to the possession of the book involves the question whether the deposit in the manner indicated is a joint deposit to which Emma Hess became entitled by reason of her survivorship. The form of the deposit of itself, in my opinion, does not as a matter of law vest the ownership of the money deposited in her. Matter of Bolin, 136 N. Y. 177; Kelly v. Home Savings Bank, 103 App. Div. 141; De Puy v. Stevens, 37 id. 289. The intent of the parties would have to be ascertained from all of the surrounding circumstances. What the intent was when such deposit was made is a question of fact which I cannot decide upon an application such as this. If the public administrator is unlawfully withholding property which belongs to the incompetent, the committee has a remedy which he can enforce by an action in which evidence can be adduced, upon which findings of fact can be based.

For the reasons stated the motion must be denied, without costs.

Ordered accordingly.