In re the Estate of Morgan

Appellate Division of the Supreme Court of New York

In re the Estate of Morgan

17 A.D.2d 771, 232 N.Y.S.2d 413, 1962 N.Y. App. Div. LEXIS 7929

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 2, 1962

StatusPublished

This text of 17 A.D.2d 771 (In re the Estate of Morgan) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Estate of Morgan, 17 A.D.2d 771, 232 N.Y.S.2d 413, 1962 N.Y. App. Div. LEXIS 7929 (N.Y. Ct. App. 1962).

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Opinion

Decree, so far as appealed from, unanimously affirmed, on the law and on the facts, with costs to parties filing briefs payable out of the estate. In 1952 decedent and objectant, who was his brother, opened an account in a Federal savings and loan association “as joint tenants with the right of survivorship ”. Five years later, and four months before his death, decedent withdrew the entire balance then in the account. Objectant relies on the holding in Marrow v. Moskowitz (255 N. Y. 219) that when “ a bank account is opened in the form prescribed by statute (Banking Law, § 249, subd. 3), a presumption at once arises that the interest of the depositors is that of joint tenants ” (p. 221); and he argues that this presumption inures in his favor as the surviving depositor. Assuming that the presumption described in Marrow V. Moskowitz is applicable to an account in a Federal savings and loan association, it would continue “ to be a mere presumption in respect of any moneys previously withdrawn ” (p. 221)—as opposed to the conclusive presumption in respect of moneys left in the account upon the death of one of the depositors. We find that the presumption claimed by objectant has been plainly overcome by the evidence adduced upon the hearing of objections to the account. Concur — Botein, P. J., Breitel, Rabin, Stevens and Eager, JJ.

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Decree, so far as appealed from, unanimously affirmed, on the law and on the facts, with costs to parties filing briefs payable out of the estate. In 1952 decedent and objectant, who was his brother, opened an account in a Federal savings and loan association “as joint tenants with the right of survivorship ”. Five years later, and four months before his death, decedent withdrew the entire balance then in the account. Objectant relies on the holding in Marrow v. Moskowitz (255 N. Y. 219) that when “ a bank account is opened in the form prescribed by statute (Banking Law, § 249, subd. 3), a presumption at once arises that the interest of the depositors is that of joint tenants ” (p. 221); and he argues that this presumption inures in his favor as the surviving depositor. Assuming that the presumption described in Marrow V. Moskowitz is applicable to an account in a Federal savings and loan association, it would continue “ to be a mere presumption in respect of any moneys previously withdrawn ” (p. 221)—as opposed to the conclusive presumption in respect of moneys left in the account upon the death of one of the depositors. We find that the presumption claimed by objectant has been plainly overcome by the evidence adduced upon the hearing of objections to the account. Concur — Botein, P. J., Breitel, Rabin, Stevens and Eager, JJ.

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Bluebook (online)

17 A.D.2d 771, 232 N.Y.S.2d 413, 1962 N.Y. App. Div. LEXIS 7929, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-morgan-nyappdiv-1962.

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