Jagger v. Bird

49 N.Y. Sup. Ct. 423, 6 N.Y. St. Rep. 85

• Court: New York Supreme Court
• Decided: December 15, 1886
• Status: Published

Opinion

Barnard, P. J.:

At the time of the death of Mary Green there stood on deposit in the Biverhead Savings Bank, to the credit of her brother and herself, the money in question “subject to draft by both.” This deposit was the amount of a fire loss upon a policy of insurance upon an old mill, which was owned by the parties in common with one Luce, who owned an undivided one-half.

The half of Mary Green and her brother was subject to the life estate of their father therein, who was, at the time of the fire, over eighty years of age. The parties did not rebuild or replace the mill, but deposited the money in the savings bank in the manner stated. The deposit was made with the assent of the father. The father died, and the brother of Mary Green, William, is his executor. After the deposit had remained in the bank some four years, Mary Green died, and she is represented by the defendant Bird. By her will she gave her interest in the old mill to her brother. It was within the power of the owners to convert the insurance money into personal property, even if it was real property, after it was received of the insurance company. Presumptively they did this, from the manner of deposit and from the length of time the deposit remained untouched.

This accords with the surrounding circumstances. The mill was old and the life-tenant was very old, and it appears that he consented to look to his children rather than to conduct the mill. The other owner had taken his share of the insurance, and he appears to have not intended to rebuild. The finding of the tidal judge, that the deposit was personal property, is fully sustained by the evidence.

The father, after he gave up the insurance money to his children, had nothing more than an equitable right against his children for the interest on the money received. He had no interest in the deposit in the absence of fraud. As between the children the deposit was one of joint ownership. (Martin v. Funk, 75 N. Y., 142; Willis v. Smith, 91 id., 298.) It was a joint ownership of the deposit as personal property. (Hastings v. West. Fire Ins. Co., 73 N. Y., 141.)

The judgment should be affirmed, with costs.

Pratt, J.:

The deposit of the fund in the savings bank, in the joint names of the plaintiff and Mrs. Green, raises the presumption that it belongs to them in equal shares. We find no evidence to repel this presumption, and believe, with the judge at Special Term, that the owner of the life estate waived his claim in favor of the heirs. Nor do we find any evidence that the heirs regarded the fund in bank as in any way different from other personal property owned by them. No decision quoted goes so far as to hold that a policy of insurance will continue in favor of the heir, unless expressly made for his benefit. And if he could not claim under a policy issued to his ancestor, still less can he, as heir, claim the fund where the ancestor collected the indemnity.

The cause was correctly decided, and judgment must be affirmed, with costs.

Judgment affirmed, with costs.