In re the Estate of Santalucia

Appellate Division of the Supreme Court of New York

In re the Estate of Santalucia

10 A.D.2d 715, 199 N.Y.S.2d 285, 1960 N.Y. App. Div. LEXIS 11445

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

DecidedMarch 7, 1960

StatusPublished

Cited by1 cases

This text of 10 A.D.2d 715 (In re the Estate of Santalucia) 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.

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In re the Estate of Santalucia, 10 A.D.2d 715, 199 N.Y.S.2d 285, 1960 N.Y. App. Div. LEXIS 11445 (N.Y. Ct. App. 1960).

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Opinion

Appeal from so much of a decree of the Surrogate’s Court, Queens County, as adjudges that appellants took and retained from the intestate the proceeds of two savings bank accounts and as directs appellants to pay over such proceeds to respondent. Decree insofar as appealed from reversed, and a new hearing granted, with costs to appellants to abide the event, payable out of the estate. No answer to the petition was interposed by appellants. Under these circumstances, the burden is on respondent to show that he, in his representative capacity, has title and the right to the immediate possession of the property involved. (Matter of Beyer, 3 Misc 2d 819 and cases therein cited.) The evidence shows that on February 29, 1956 (30 days before the intestate died) $5,236.15 was withdrawn from an account in the intestate’s name, on a withdrawal slip signed by the intestate. The withdrawal consisted of $236.15 in cash and $5,000 in the form of a check payable to the order of the intestate, which she indorsed. Appellant Formosa, intestate’s son, received the entire proceeds. The burden was on respondent to show that the intestate retained title to these proceeds and to rebut the presumption of delivery of the check with intent to transfer title. (Negotiable Instruments Law, § 35; see Matter of Jennings, 286 App. Div. 256, affd. 1 N Y 2d 762.) The proof adduced by respondent was insufficient to show that appellant Formosa received the proceeds “without right or authority ”, The evidence further shows that on March 9, 1956 a joint account was opened in the names of the intestate and the appellant Searano, her daughter, and that the money was withdrawn on March 27, 1956, three days before the intestate died, on a withdrawal slip signed by the intestate. The burden of proof was on respondent to show that the intestate did not knowingly or consciously create the joint account (Matter of Yauch, 270 App. Div. 348, affd. 296 N. Y. 585; Marrow v. Moskowitz, 255 N. Y. 219) or that there was fraud, undue influence, or incompetency on the part of the intestate. In the absence of such proof, the signature of the intestate on the signature card is sufficient evidence to show her intention to make a gift of the proceeds to the survivor. (Matter of Creekmore, 1 N Y 2d 284; Marrow v. Moskowitz, supra.) Beldock, Acting P. J., Ughetta, Christ, Pette and Brennan, JJ., concur.

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Appeal from so much of a decree of the Surrogate’s Court, Queens County, as adjudges that appellants took and retained from the intestate the proceeds of two savings bank accounts and as directs appellants to pay over such proceeds to respondent. Decree insofar as appealed from reversed, and a new hearing granted, with costs to appellants to abide the event, payable out of the estate. No answer to the petition was interposed by appellants. Under these circumstances, the burden is on respondent to show that he, in his representative capacity, has title and the right to the immediate possession of the property involved. (Matter of Beyer, 3 Misc 2d 819 and cases therein cited.) The evidence shows that on February 29, 1956 (30 days before the intestate died) $5,236.15 was withdrawn from an account in the intestate’s name, on a withdrawal slip signed by the intestate. The withdrawal consisted of $236.15 in cash and $5,000 in the form of a check payable to the order of the intestate, which she indorsed. Appellant Formosa, intestate’s son, received the entire proceeds. The burden was on respondent to show that the intestate retained title to these proceeds and to rebut the presumption of delivery of the check with intent to transfer title. (Negotiable Instruments Law, § 35; see Matter of Jennings, 286 App. Div. 256, affd. 1 N Y 2d 762.) The proof adduced by respondent was insufficient to show that appellant Formosa received the proceeds “without right or authority ”, The evidence further shows that on March 9, 1956 a joint account was opened in the names of the intestate and the appellant Searano, her daughter, and that the money was withdrawn on March 27, 1956, three days before the intestate died, on a withdrawal slip signed by the intestate. The burden of proof was on respondent to show that the intestate did not knowingly or consciously create the joint account (Matter of Yauch, 270 App. Div. 348, affd. 296 N. Y. 585; Marrow v. Moskowitz, 255 N. Y. 219) or that there was fraud, undue influence, or incompetency on the part of the intestate. In the absence of such proof, the signature of the intestate on the signature card is sufficient evidence to show her intention to make a gift of the proceeds to the survivor. (Matter of Creekmore, 1 N Y 2d 284; Marrow v. Moskowitz, supra.) Beldock, Acting P. J., Ughetta, Christ, Pette and Brennan, JJ., concur.

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10 A.D.2d 715, 199 N.Y.S.2d 285, 1960 N.Y. App. Div. LEXIS 11445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-santalucia-nyappdiv-1960.

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