In re the Estate of Sheehan

52 A.D.2d 956, 383 N.Y.S.2d 631, 1976 N.Y. App. Div. LEXIS 12820

Opinion

In a discovery proceeding, the appeal is from an order of the Surrogate’s Court, Richmond County, dated September 4, 1974, which, after a nonjury trial, ordered appellant to deliver the sum of $11,165.27 to Norman C. Morse, as administrator. Order modified, on the law, by reducing the amount appellant is directed to deliver to $5,582.64. As so modified, order affirmed, without costs or disbursements. The findings of fact are affirmed. The Surrogate properly ruled that the account in the names of James Sheehan and William Sheehan, payable to either or survivor, was a joint account within the meaning of section 675 of the Banking Law (see Moyer v Briggs, 47 AD2d 64). However, the Surrogate erred in awarding all funds received by Sullivan to James Sheehan’s estate. Since at any time during his lifetime, William Sheehan, the creator of the joint account and a cotenant thereof, retained the right to dispose of the one-half interest he retained, he had the power to defeat the right of survivorship to the extent of one half of the funds of the joint account. It is logical that, since Sullivan’s interest derived from the funds of that closed joint account, his representative should be permitted to retain at least one half of the funds Sullivan received (see Matter of Bricker v Krimer, 13 NY2d 22, 28; Matter of Libow, 46 Misc 2d 919, 924; cf. Matter of Kleinberg v Heller, 38 NY2d 836). Hopkins, Acting P. J., Latham, Cohalan, Margett and Hawkins, JJ., concur.