In re the Judicial Settlement of the Account of Proceedings of Kelly

Appellate Division of the Supreme Court of New York

In re the Judicial Settlement of the Account of Proceedings of Kelly

259 A.D. 1024, 1940 N.Y. App. Div. LEXIS 7812

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

DecidedJune 10, 1940

StatusPublished

Cited by2 cases

This text of 259 A.D. 1024 (In re the Judicial Settlement of the Account of Proceedings of Kelly) 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 Judicial Settlement of the Account of Proceedings of Kelly, 259 A.D. 1024, 1940 N.Y. App. Div. LEXIS 7812 (N.Y. Ct. App. 1940).

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Opinion

In a proceeding for the settlement of respondents’ account as executors, order of the Surrogate’s Court of Orange County modified by striking therefrom the first decretal paragraph, and substituting therefor a paragraph adjudging that the claim of appellant Mary C. Kelly for the sum of $11,047.50 is allowed to the extent of $725, with interest thereon from June 1, 1934, and otherwise disallowed. As so modified the order is unanimously affirmed, with costs to appellants and respondents, payable out of the estate. We agree with the surrogate that the provision in the divorce decree for the support and maintenance of testator’s son contemplated only the usual college course of four years; but the monthly payments were not limited to the periods actually spent in college. The claim should, therefore, have been allowed to the extent of the difference between the amount paid and the total amount payable for four vears at $1,200 a year. Sections 134 and 239 of the Banking Law are not applicable to the interest account standing in the name of the testator t and his wife. Ownership of the fund must, therefore, be determined under common-' law rules. The usual rule that a bank deposit made in the names of two persons is presumed to be made for convenience only (Matter of Bolin, 136 N. Y. 177) is subject to an exception where the parties are husband and wife. In the latter case the husband is presumed to have intended to benefit the wife by conferring upon her the right of survivorship. (Matter of Meehan, 59 App. Div. 156; West v. McCullough, 123 id. 846.) Here, the presumption in the wife’s favor is supported by other evidence of such intention on the part of the husband. Present — Lazansky, P. J., Hagarty, Johnston, Taylor and Close, JJ,

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In a proceeding for the settlement of respondents’ account as executors, order of the Surrogate’s Court of Orange County modified by striking therefrom the first decretal paragraph, and substituting therefor a paragraph adjudging that the claim of appellant Mary C. Kelly for the sum of $11,047.50 is allowed to the extent of $725, with interest thereon from June 1, 1934, and otherwise disallowed. As so modified the order is unanimously affirmed, with costs to appellants and respondents, payable out of the estate. We agree with the surrogate that the provision in the divorce decree for the support and maintenance of testator’s son contemplated only the usual college course of four years; but the monthly payments were not limited to the periods actually spent in college. The claim should, therefore, have been allowed to the extent of the difference between the amount paid and the total amount payable for four vears at $1,200 a year. Sections 134 and 239 of the Banking Law are not applicable to the interest account standing in the name of the testator t and his wife. Ownership of the fund must, therefore, be determined under common-' law rules. The usual rule that a bank deposit made in the names of two persons is presumed to be made for convenience only (Matter of Bolin, 136 N. Y. 177) is subject to an exception where the parties are husband and wife. In the latter case the husband is presumed to have intended to benefit the wife by conferring upon her the right of survivorship. (Matter of Meehan, 59 App. Div. 156; West v. McCullough, 123 id. 846.) Here, the presumption in the wife’s favor is supported by other evidence of such intention on the part of the husband. Present — Lazansky, P. J., Hagarty, Johnston, Taylor and Close, JJ,

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259 A.D. 1024, 1940 N.Y. App. Div. LEXIS 7812, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-judicial-settlement-of-the-account-of-proceedings-of-kelly-nyappdiv-1940.

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