In re the Estate of McMurdo

Appellate Division of the Supreme Court of New York

In re the Estate of McMurdo

56 A.D.2d 602, 391 N.Y.S.2d 468, 1977 N.Y. App. Div. LEXIS 10678

Appellate Division of the Supreme Court of the State of New York·Decided February 15, 1977·Published·Cited by 4 cases

Opinion

In a discovery proceeding, the appeal is from a decree of the Surrogate’s Court, Rockland County, dated June 1, 1976, which, after a hearing, held that David McMurdo possessed certain moneys which belonged to the decedent’s estate and directed him to transfer the said funds into the administrators’ account. Decree affirmed, with costs to respondent payable personally by appellant. The record supports the determination of the Surrogate that there was no evidence of an intent on the decedent’s part to make a gift of the moneys. Moreover, the presumption created by section 675 of the Banking Law was rebutted by the showing that the decedent was housebound and probably reposed full trust in the son in whose home she was living (see Matter of Dziadzio, 31 Misc 2d 125). Such a showing was enough to shift the burden of proof to the appellant, a burden which he has not met (see Matter of Donleavy, 41 Misc 2d 28, 30). Latham, Acting P. J., Margett, Suozzi and Mollen, JJ., concur.

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In a discovery proceeding, the appeal is from a decree of the Surrogate’s Court, Rockland County, dated June 1, 1976, which, after a hearing, held that David McMurdo possessed certain moneys which belonged to the decedent’s estate and directed him to transfer the said funds into the administrators’ account. Decree affirmed, with costs to respondent payable personally by appellant. The record supports the determination of the Surrogate that there was no evidence of an intent on the decedent’s part to make a gift of the moneys. Moreover, the presumption created by section 675 of the Banking Law was rebutted by the showing that the decedent was housebound and probably reposed full trust in the son in whose home she was living (see Matter of Dziadzio, 31 Misc 2d 125). Such a showing was enough to shift the burden of proof to the appellant, a burden which he has not met (see Matter of Donleavy, 41 Misc 2d 28, 30). Latham, Acting P. J., Margett, Suozzi and Mollen, JJ., concur.

In re the Estate of McMurdo, 56 A.D.2d 602, 391 N.Y.S.2d 468, 1977 N.Y. App. Div. LEXIS 10678 (N.Y. Ct. App. 1977).

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