Opinion
February 26, 1962
In a proceeding to settle the account of the executor under the will of Fred W. Otte, deceased, the committee of the wife of the testator appeals from so much of a decree of the Surrogate's Court, Westchester County, entered March 24, 1961 upon the decision of the court after a nonjury trial, as: (1) dismissed his objections to the account, (2) awarded counsel fees to the executor and to the attorneys for certain legatees and remaindermen for resisting the claims advanced in such objections, (3) refused counsel fees to the attorneys for the committee, and (4) discharged the executor upon his compliance with the decree. Decree insofar as appealed from modified on the law and the facts, as follows: (1) by striking out the second ordering paragraph insofar as it dismisses the committee's objections; (2) by striking out the ninth ordering paragraph refusing any allowance of fee to the committee's attorneys; (3) by adding a provision directing payment to the committee of the sum of $2,000 as and for his ward's share of Account No. 52,425 in the Peekskill Savings Bank, as amended or changed on October 1, 1952; (4) by adding a provision sustaining the objections to this extent and otherwise dismissing them; (5) by adding a provision directing that the committee's attorneys shall receive an appropriate allowance for services rendered in this proceeding; and (6) by amending accordingly the twelfth ordering paragraph. As so modified, the decree insofar as appealed from is affirmed, with costs to all parties appearing and filing briefs; and the matter is remitted to the Surrogate's Court for the making of an application by the committee's attorneys for the fixation of their fee and for the entry of an appropriate decree not inconsistent herewith. Findings of fact which may be inconsistent herewith are reversed, and new findings are made as indicated herein. In our opinion, the proof was clear that all of the funds deposited in the account in issue emanated solely from the husband's individual resources, except as to $777.48 not herein involved, and $4,000 the source of which was found "doubtful." Since the bulk of the funds was derived from the husband's separate property, the amendment of his account on October 1, 1952 into the form of a joint account was not conclusive, and the statutory presumption of joint tenancy therein was rebuttable as to funds withdrawn by the husband before his death ( Matter of Juedel, 280 N.Y. 37, 42). Upon the proof furnished, the learned Surrogate, weighing all the evidentiary factors, properly concluded that the ostensible joint tenancy was in fact intended to endow the wife with a survivorship right only, with no title de praesenti to one half of the bulk of the funds so deposited or of any other part thereof ( Matter of Polizzo, 308 N.Y. 517, 521; Walsh v. Keenan, 293 N.Y. 573, 578). As to the $4,000 of doubtful origin, a different rule obtains. Where the source or ownership is not known, the funds deposited in the account in issue should be treated as property belonging to husband and wife as tenants in common in equal shares ( Matter of Kaupper, 141 App. Div. 54, 57, affd. 201 N.Y. 534; Belfanc v. Belfanc, 252 App. Div. 453, 456, affd. 278 N.Y. 563). Accordingly, the wife was entitled to a recovery of $2,000. Beldock, P.J., Christ, Hill and Rabin, JJ., concur; Ughetta, J., dissents and votes to affirm without modification.