Moskowitz v. Marrow

167 N.E. 506, 251 N.Y. 380, 66 A.L.R. 870, 1929 N.Y. LEXIS 736

• Court: New York Court of Appeals
• Decided: July 11, 1929
• Status: Published

Opinions

Kellogg, J.

Fannie Manheimer was the owner of substantial deposits, credited to her individual name, in New Netherland Bank, Excelsior Savings Bank, Bank for Savings and Greenwich Savings Bank, all of the city of New York. On April 28, 1924, each of the banks, at the express direction of Fannie Manheimer, made a transfer of the fund deposited with it to a new account wherein the deposit was credited jointly to Fannie Manheimer and Pearl Harris, her granddaughter, payable to “ either or the survivor of them.” On the same day her pass books in the several banks were delivered by Fannie Manheimer to Pearl Harris. Thereafter the money remained on deposit, credited to the joint account of the two women, until the 5th day of December, 1924. On that day, Fannie Manheimer delivered a writing to each of the four banks, notifying each that the “ privilege ” granted by her to Pearl Harris “ to withdraw any money or moneys from my account or joint account in your bank ” was revoked, and instructing each to honor no signature other than her own for any withdrawal. In January, 1925, Fannie Manheimer withdrew the-deposits in New Netherland Bank and Excelsior Savings Bank, and redeposited them therein to the credit of herself individually. In April, 1925, the accounts in these two banks, at the direction of Fannie Manheimer, were re-established in the joint names of herself and Pearl Harris, “ payable to either or the survivor.” On May 4th, 1925, Fannie Manheimer died. Shortly after her death, Pearl Harris, upon presentation of the appropriate pass books, withdrew from New Netherland Bank, Excelsior Savings Bank and Bank for Savings substantially all the moneys on deposit. She likewise presented the appropriate pass book to the Greenwich Savings Bank in an attempt to procure a withdrawal of the funds therein deposited. That bank refused to make payment, and still retains the moneys.

In this action brought by the executors of the last will and testament of Fannie Manheimer against Pearl Harris, now Pearl Harris Marrow, to recover the withdrawals, it has been held that the plaintiffs are entitled to a recovery of the sums of money withdrawn from Bank for Savings, to the pass book of such bank, and to the pass book of the Greenwich Savings Bank, wherein the moneys deposited remain credited to the joint account. The theory of the recovery was that the notices served by Fannie Manheimer upon these banks on the 5th day of December, 1924, to permit no withdrawals by any person other than herself, were effectual to revoke the transfers to the joint accounts, made at her instance. On the other hand, it was held that Pearl Harris was entitled to the moneys withdrawn from New Netherland Bank and Excelsior Bank. These were the moneys which had been credited, first, to Fannie Manheimer individually; secondly, to the joint account of the two women; thirdly, to the individual account of Fannie Manheimer, and fourthly, after the giving of the notice of December 5th, 1924, to the joint accounts of Fannie Manheimer and Pearl Harris “ payable to either or the survivor.” The theory upon which a recovery of these funds was denied to the plaintiffs was that the redeposits to the joint accounts in April, 1925, rendered ineffectual, as to such moneys, the notices of attempted revocation previously given in December, 1924.

Formerly, the deposits made by Fannie Manheimer to the joint accounts of herself and Pearl Harris would have been insufficient to establish a gift, by the former to the latter, of an interest in the funds deposited, to take effect either presently or in future. (Beaver v. Beaver, 117 N. Y. 421; Matter of Bolin, 136 N. Y. 177; Kelly v. Beers, 194 N. Y. 49.) In Beaver v. Beaver it was held that a deposit made by a father to the individual credit of his son did not operate to pass title to the son. The court said: “ We cannot close our eyes to the well-known practice of persons depositing in savings banks money to the credit of real or fictitious persons, with no intention of divesting themselves of ownership.” In Matter of Bolin it was held that a deposit made by Julia Cody in an account entitled “ Julia Cody or daughter, Bridget Bohn ” passed no title to Bridget Bolin. The court remarked that the only presumption from the form of the deposit would be that “ the depositor so arranged for the purposes of convenience.” It was also held that, even if a gift had been intended,- there was lacking a delivery of the subject of the gift, either actual or symbolic, since the delivery of the pass book was an equivocal act, in that it might have been made either to consummate a gift or merely to satisfy the purposes of convenience. In Kelly v. Beers the deposit made was to “ Kate V. Beers or Sarah E. Kelly, her daughter, or the survivor of them.” It was said that the form of the deposit alone, under the authorities, would not be sufficient to constitute the making of a gift. Therefore, independently of any statute, the deposits made by Fannie Manheimer to the credit of herself and Pearl Harris, “ payable to either or the survivor of them,” and the delivery of the pass books to Pearl Harris, would have been insufficient either to establish an intention to make a gift or to effectuate a delivery of the subject-matter of a gift.

In the year 1909 the Legislature enacted chapter 2 of the Consolidated Laws, entitled “ Banting Law ” (Laws of 1909, chap. 10). Section 144 of this law provided in part as follows: “ When a deposit shall be made by any person in the names of such depositor and another person and in form to be paid to either or the survivor of them, such deposit thereupon and any additions thereto made by either of such persons upon the mating thereof shall become the property of such persons as joint tenants and the same together with all interest thereon shall be held for the exclusive use of the persons so named and may be paid to either during the lifetime of both or to the survivor after the death of one of them, and such payment and the receipt or acquittance of the one to whom such payment is made shall be a,valid and sufficient release and discharge to said bank for all payments made on account of such deposit prior to the receipt by said bank of notice in writing not to pay such deposit in accordance with the terms thereof.”

That the purpose and effect of the enactment was to reverse the common-law rule and to make a deposit in the statutory form presumptive evidence of an intent to make a gift presently to take effect was definitely determined in Clary v. Fitzgerald (155 App. Div. 659). That case was decided in the year 1913; the decision was affirmed by this court in 213 New York, 696. There, Katherine Connelly, the aunt of Kate Fitzgerald, made a deposit in a savings bank to the credit of “ Mrs. Kate Connelly or Mrs. Kate A. Fitzgerald, either or survivor, may draw.” After the death of Mrs. Connelly the major part of the moneys deposited was withdrawn by Mrs. Fitzgerald. The action was brought by the administratrix of the estate of Mrs. Connelly to recover from Mrs. Fitzgerald the withdrawals. It was held that the form of the deposit had the effect, under section 144, of transferring title in the fund to Mrs. Fitzgerald, and the complaint was dismissed. The court said: “ The deposit was one within the classification of the statute, made by the intestate in the names of herself1 and another person and in form to be paid to either or the survivor of them.’ It would seem, therefore, if any effect is to be given to the direct and explicit language of the statute, this deposit, as the statute provides, thereupon, presumptively at least, became the property of the designated depositors ‘ as joint tenants; ’ i. e., as joint owners.”

The court quoted with approval a statement from Brady on Bank Deposits, page 46: “It must be added that, under a New York statute, a deposit.of this character would, today, create an estate in joint tenancy, even without the delivery of the pass book. But, under that statute, once the deposit is opened, and the estate in joint tenancy created, the depositor cannot revoke the gift or take it back. If he draws the money and uses it he is accountable to the donee as any other joint tenant of personal property would be.”

The provisions of section 144 were carried over into section 249 when the present Banking Law was enacted by chapter 369 of the Laws of 1914. Certain word changes were made necessary by the fact that the former section dealt .with banks in general, while the new section was made applicable to none other than savings banks. Otherwise, in all matters of substance, the provisions of section 144 were re-enacted to form a part of section 249. There was added, also, at the foot of the old provisions, as re-enacted, a sentence containing a new provision which reads as follows: “ The making of the deposit in such form shall, in the absence of fraud or undue influence, be conclusive evidence, in any action or proceeding to which either such savings bank or the surviving depositor is a party, of the intention of both depositors to vest title to such deposit and the additions thereto in such survivor.” The plaintiffs lay great stress upon the wording of the added provision. They reason in this wise: A deposit in the statutory form will constitute evidence of an intent to give, but this evidence will be available only in an action to which either a savings bank or the “ surviving depositor ” may be a party. The intent which it will evidence in any action is an intention of the depositors “ to vest title to such deposit and the additions thereto in such survivor.” The form of the deposit, in an action between the depositors themselves, will have no probative value; it will not evidence, in any action, or for any purpose, an intent of the original depositor presently to vest title in his joint depositor. From these premises results the conclusion that the deposits are ineffective to transfer title until the death of the original depositor; that meanwhile the deposits are revocable at will by such depositor. If it were a fact that all the provisions of section 249, as they now appear therein, were enacted as a completed whole at one and the same time, there might be force in the argument. Then it might with some justice be said that the Legislature, having stated the particular intention, to establish which the form of the deposit should constitute evidence, thereby negatived its value as proof of any other intent. Even then, the argument would render purposeless all the other provisions of the section. However, as we have seen, section 249 was not enacted as a completed whole, at one and the same time. Long before the added provision, relied upon by the plaintiffs, became a law, other provisions, now contained in section 249, were present in former section 144. These provisions, standing alone, sanctioned a presumption from a deposit in the statutory form, although not a conclusive presumption, that a transfer of an interest in the funds deposited was intended and had been effectuated. It was so held in Clary v. Fitzgerald (supra), a case decided before the added provision was enacted. That case, since it dealt with substantially identical provisions, is a definite authority that the provisions of section 249, other than the added provision, are effective to establish a transfer.

Laying aside the additional provision, we find that section 249 in terms declares that, where a deposit is made by one person in his name and that of another person, payable to either or the survivor, the deposit and any additions thereto “ shall become the property of such persons as joint tenants;” that they “shall be held for the exclusive use of such persons;” that they “ may be paid to either during the lifetime of both or to the survivor after the death of one of them.”

When the Legislature has used a term having a well-defined legal meaning, such as the term “ joint tenants,” we must assume that it has advisedly employed it to express the meaning commonly attributed thereto. “ Joint tenants, by reason of the combination of entirety of interest with the power of transferring in equal shares, are said to be seized per my et per tout, or by the half and the whole, but tenants by the entirety are seized per tout et non per my, and the conveyance by either husband or wife will have no effect against the other if survivor.” (Per Pound, J., in Matter of McKelway, 221 N. Y. 15, 19.) It was there held that a surviving joint tenant, as to at least one-half of the joint property, was its owner from the date of the creation of the tenancy. “ It is the fundamental principle of a joint tenancy, that while the parties constitute but one person, so to speak, as far as the rest of the world is concerned, with regard to themselves each is entitled to an equal share of the rents, income, and profits, so long as he lives.” (Schouler Pers. Prop. [5th ed.] 224.) Not merely did the Legislature use the term “ joint tenants; ” it provided that after the creation of the deposit, the funds deposited, together with all dividends thereon, should be held for the exclusive use of the joint depositors. It could not better have indicated that the term “ joint tenants,” as used by it, was intended to possess that technical meaning which is accorded to it by the legal profession. Assuming that, upon the making of the deposits by Fannie Manheimer, in the joint names of herself and Pearl Harris, the two become “ joint tenants,” it is immaterial whether Pearl Harris then acquired an interest in a moiety or an interest in the whole of the funds deposited. If she received the former, rather than the latter, to that extent at least the deposit was irrevocable, since she had acquired a vested property interest. Even if Fannie Manheimer possessed the power, by transferring her interest to another, thereby to sever the joint tenancy, and prevent survivorship, in fact this was never done, so that the title to the balance would have passed to Pearl Harris, as survivor.

The plaintiffs reason that even though the deposits in the joint account, to the credit of Fannie Manheimer and Pearl Harris, payable to either or the survivor, con stituted a joint tenancy, the transfer possessed a tentative character and, not being completed until survivorship ensued, was meanwhile revocable by the original depositor. In support of this proposition they cite Matter of Totten (179 N. Y. 112); Matter of Albrecht (136 N. Y. 91), and Matter of Kane (246 N. Y. 498). These cases are wholly beside the point. In the Totten case the court dealt with a deposit made by one person of moneys owned by him to the credit of himself as trustee for another. It was held that the deposit created a tentative trust, revocable by the depositor before his death, but, if unrevoked, taking effect at his death to vest title in the surviving beneficiary. The case with which we are dealing has no similarity to the Totten case. Fannie Manheimer never declared herself to be a trustee for Pearl Harris or any other person. Therefore, no trust was created by her. (Young v. Young, 80 N. Y. 422.) In the other two cases the subject considered was either the purchase of securities by a husband with moneys of his own, or the deposit of such moneys, in the joint names of himself and wife. It was held that such a transfer possessed all the essential qualities of a gift causa mortis, and was revocable by the husband before his death. This rule presents an exception if not an anomaly in the law of property, and is applicable only in the case of a gift by a husband to. his wife of property or moneys belonging solely to himself. (West v. McCullough, 123 App. Div. 846; 194 N. Y. 518; Matter of Kane, supra.) In such an instance the husband and wife never become joint tenants in the true sense. Thus, in Matter of Kane it was said: “ The cases hold, it is true, that a husband who puts the title to a chose in action in the name of himself and his wife jointly does not create a joint tenancy in the strict sense.” In our case, by force of the statutory presumption, if not rebutted, Fannie Manheimer and Pearl Harris became true “ joint tenants.” To say that they became joint tenants through survivorship only is to state an absurdity. Certainly the law has never indulged in the fiction that a joint tenancy between two persons may arise after the death of one person, when only one survives.

The case of Matter of Tilley (166 App. Div. 240; affd., 215 N. Y. 702) is a definite authority to the effect that a true joint tenancy, between Fannie Manheimer and Pearl Harris, arose at the moment when the deposits were made. In that case moneys had been deposited in a savings bank to the joint credit of the depositor and another person “ payable to either of them, or to the survivor.” It was held that on the death of the original depositor no transfer to the survivor took place which was taxable, under an amendment to the Tax Law (Cons. Laws, ch. 60) which made taxable any transfer “ made in contemplation of the death of the grantor, vendor or donor or intended to take effect in possession or enjoyment at or after such death.” (Laws of 1911, chap. 732, § 220, par. 4.) The court held that, under the provisions of section 144 of the Banking Law, which were then in force, the depositor, when he made the deposit, “ vested the ownership of such funds in joint tenancy in himself ” and the other person. It further said: “ The possession is given upon the creation of the estate; the rights are absolutely and conclusively fixed, and the only question which is contingent is which of two or more joint tenants shall eventually own the entire estate. But each is in full possession, each has full ownership as against all the world, with the exception of the equal right of the others, and the transfer which becomes fully determined at the death of one of two joint owners relates back to the creation of the estate. It was then that the rights vested, and the death only determines which shall be the gainer by the transaction.”

The Tax Law, as presently written, in section 220, subdivision 5, provides that where moneys are deposited in banks “ in the joint names of two or more persons and payable to either or the survivor,” upon the death of one of such persons the right of the surviving joint tenant “ to the -immediate ownership or possession and enjoyment of such property, shall be deemed a transfer taxable under the provisions of this article ” in the same manner as though “ a fractional part of the property to be determined by dividing the value of the entire property by the number of joint tenants ” belonged “ absolutely to the deceased joint tenant ” and “ had been bequeathed to the surviving tenant.” It will be observed that a tax may be imposed only upon the additional sum which comes to the joint tenant through his survivorship; none may be imposed upon his remaining share. Here is express legislative recognition of the fact that where a deposit is made in the joint names of two persons, payable to either or the survivor, there is, under the provisions of section 249 of the Banking Law, an immediate transfer of an interest in the fund, so that at the death of one of the tenants the survivor is taxable, not for the moiety which came to him on the creation of the joint tenancy, but only for the moiety received from his joint tenant through survivorship.

In O’Connor v. Dunnigan (158 App. Div. 334; affd., 213 N. Y. 676) the facts were that a man and bis wife, Mary Guilfoyle and Joseph Guilfoyle, deposited moneys in a bank to an account which read “ Mary Guilfoyle or Joseph Guilfoyle. Pay to either or the survivor of either.” Mary withdrew all the moneys and deposited them in a bank to her individual credit. Three days afterwards Mary died. This action was brought by Joseph against the executors of the will of Mary Guilfoyle to recover the moneys withdrawn. A recovery of all the moneys was decreed. It was not shown to what extent the original deposits had been made by Joseph and to what extent by Mary. If the plaintiffs’ contention that the form of the account, in which the two made deposits, evidenced a tentative transfer only, which was subject to revocation by the one making the deposit, was correct, then the recovery should have been limited to the amounts deposited by Joseph Guilfoyle. The court held otherwise, saying: “ It cannot matter whether the moneys originally came from Joseph Guilfoyle or Mary Guilfoyle. The form of the deposit indicated an intent thereby to create a joint ownership with the right of survivorship.” It further said: “It would be preposterous to claim that an appropriation of personal property by one joint owner to his personal use could divest the interest of the other joint owner.” This case dealt with deposits made long before the adoption of former section 144 of the Banking Law. It was decided upon common-law principles without reference to the provisions of that section which had been enacted prior to the decision. It is important upon this issue, however, as a holding that a joint tenancy, which may result from a deposit in joint account, is a true joint tenancy, the transfers involved in the creation of which are irrevocable at the instance of either depositor, to the extent of the funds by him deposited. If this be true of common-law deposits to joint account, it must be equally true of deposits made under the provisions of the statute.

One more argument of the plaintiffs, favoring revocability, must be considered. They call attention to that provision of section 249 which exempts a savings bank from liability for all payments made from the joint account • “ prior to the receipt by said savings bank of notice in writing not to pay such deposit in accordance with the terms thereof.” This provision was borrowed from former section 144 which, with the exception that “ savings bank ” there appeared as “ bank,” employed the identical words quoted. The plaintiffs reason that the giving of a “ notice ” thereby sanctioned is the giving of a notice of cancellation or revocation by the original depositor. The provisions of former section 144, including the provision in question, were distributed, by the new Banking Law of 1914, not only to section 249, but to new sections 148 and 198 as well. In these new sections, the particular provision of section 144, the reproduction of which in section 249 is now .relied upon, reappears as a provision for exemption of a “ bank ” or “ trust company,” for payments made prior to the receipt of “ notice in writing signed by any one of such' joint tenants, not to pay such deposit in accordance with the terms thereof.” Thus, in the instances of a “ bank ” and a “ trust company,” the notice might be given either by the original depositor or by the person who became joint tenant of the fund through the transfer involved in the making of the deposit. Clearly, a notice of revocation of the transfer could not be made by a person other than the transferror. It must be concluded, therefore, that the notice provided for in these sections is not a notice of revocation or cancellation. If that be true, it must be equally true of the notice provided for in section 249. Certainly, it cannot be supposed that the Legislature intended that deposits made under sections 148 and 198 should be irrevocable, and those made under section 249 should be revocable. Indeed, the provisions of the last section are less restrictive than those of the former. In the one the notice may be given by any person; in the other two it must be given by one of the joint tenants. Self-evidently, the notice provided for was merely one the effect of which should be to withdraw from the bank of deposit the immunity granted by the statute, so that thereafter all payments made by it would be subject to the risk that the person paid was not entitled thereto.

It is said that if we interpret the provisions of section 249, other than the added provision, to work an irrevocable transfer, we deprive the added provision of any force whatever. The retort might be made that the converse would result, if to the added provision alone such a transfer were made attributable; the other and earlier provisions would then be meaningless. But there is a better answer. The other provisions may be regarded as creating a rebuttable presumption of the making of a transfer; the added provision as creating an irrebuttable presumption, or “ conclusive evidence,” as the provision itself states, of an effective transfer, in cases of survivor-ship only. By so' interpreting the section all its parts would be given force and effect. We think that is the interpretation properly to be given.

We think, for all these reasons, that /Fannie Manheimer, in originally making the joint deposits, transferred to Pearl Harris a present property interest in the moneys deposited, which was not subject to cancellation, at the instance of Fannie Manheimer, and was not destroyed or in the least affected by the notice not to pay which Fannie Manheimer served upon the banks.

The judgment of the Appellate Division and that of the Special Term should be reversed and the complaint dismissed, with costs to the defendant in all the courts.