In re the Estate of Leavitt

Appellate Division of the Supreme Court of New York

In re the Estate of Leavitt

231 A.D.2d 857, 647 N.Y.S.2d 619, 1996 N.Y. App. Div. LEXIS 14240

Appellate Division of the Supreme Court of the State of New York·Decided September 27, 1996·Published·Cited by 1 cases

Opinion

Order and judgment unanimously affirmed without costs. Memorandum: The guardian and guardian ad litem of John Sloan (respondents) contend [858] that Surrogate’s Court erred in directing the stakeholder, Chase Manhattan Bank, to pay $29,898.50 from a bank account entitled "Nancy J. Leavitt FBO John Sloan.” We disagree. Leavitt, Sloan’s sister and representative payee, opened the account in 1992 on behalf of Sloan, a judicially declared incompetent, and deposited his disability checks therein. On February 25, 1994, less than a year before she died, Leavitt deposited $29,333.01 of her own money into the account.

Respondents did not meet their burden of proving that the deposit of Leavitt’s funds into Sloan’s account constituted an inter vivos gift (see, Mortellaro v Mortellaro, 91 AD2d 862; see also, Turano, Practice Commentaries, McKinney’s Cons Laws of NY, Book 58A, SCPA 2104, at 415). To make a gift, the donor must divest herself of dominion and control over the property (see, Gruen v Gruen, 68 NY2d 48, 56; Matter of Szabo, 10 NY2d 94, 98). Here, there is no evidence that Leavitt relinquished dominion and control over the funds, which she could have withdrawn from the account at any time. Moreover, as respondents concede, Leavitt did not establish a Totten trust under EPTL 7-5.2. We conclude, therefore, that the court properly directed the stakeholder to pay the funds to petitioner. (Appeal from Order and Judgment of Monroe County Surrogate’s Court, Ciaccio, S.—Summary Judgment.) Present— Pine, J. P., Fallon, Wesley, Balio and Boehm, JJ.

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Order and judgment unanimously affirmed without costs. Memorandum: The guardian and guardian ad litem of John Sloan (respondents) contend [858] that Surrogate’s Court erred in directing the stakeholder, Chase Manhattan Bank, to pay $29,898.50 from a bank account entitled "Nancy J. Leavitt FBO John Sloan.” We disagree. Leavitt, Sloan’s sister and representative payee, opened the account in 1992 on behalf of Sloan, a judicially declared incompetent, and deposited his disability checks therein. On February 25, 1994, less than a year before she died, Leavitt deposited $29,333.01 of her own money into the account.

Respondents did not meet their burden of proving that the deposit of Leavitt’s funds into Sloan’s account constituted an inter vivos gift (see, Mortellaro v Mortellaro, 91 AD2d 862; see also, Turano, Practice Commentaries, McKinney’s Cons Laws of NY, Book 58A, SCPA 2104, at 415). To make a gift, the donor must divest herself of dominion and control over the property (see, Gruen v Gruen, 68 NY2d 48, 56; Matter of Szabo, 10 NY2d 94, 98). Here, there is no evidence that Leavitt relinquished dominion and control over the funds, which she could have withdrawn from the account at any time. Moreover, as respondents concede, Leavitt did not establish a Totten trust under EPTL 7-5.2. We conclude, therefore, that the court properly directed the stakeholder to pay the funds to petitioner. (Appeal from Order and Judgment of Monroe County Surrogate’s Court, Ciaccio, S.—Summary Judgment.) Present— Pine, J. P., Fallon, Wesley, Balio and Boehm, JJ.

In re the Estate of Leavitt, 231 A.D.2d 857, 647 N.Y.S.2d 619, 1996 N.Y. App. Div. LEXIS 14240 (N.Y. Ct. App. 1996).

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