Opinion
October 29, 1951.
Decedent died on March 11, 1948, leaving a will executed December 4, 1947, in which she devised and bequeathed all her property to her son Francis, the executor. Within a week after the execution of the will, decedent transferred three bank accounts, each in the sum of $6,000, from her own individual name to her name in trust for Francis, and gave the bankbooks to Francis, who kept them in his safe deposit box. On one occasion, at decedent's request, the books were removed from the safe deposit box and given to decedent so she could withdraw the accrued interest. Thereafter the books were returned to Francis and again placed in his safe deposit box. At the time of decedent's death there was a balance of $6,000 in each account. After the will was probated, Edward J. Ward, the surviving husband, for whom no provision was made in the will, filed a notice of election under section 18 of the Decedent Estate Law. The Surrogate held the notice of election was valid. The executor filed his account, claiming that the three accounts were his personal property and did not constitute any part of the estate. The husband filed objections; the only one with which we are presently concerned is the exclusion of the three bank accounts from the assets of the estate. After a trial the Surrogate sustained that objection, found that the transfers were illusory, and that the estate owned the proceeds of the accounts. The executor appeals. Decree of the Surrogate's Court, Queens County, insofar as appealed from, reversed on the law and the facts, without costs, and the matter remitted to the Surrogate's Court for the entry of a decree overruling the objection. There is no evidence to sustain the finding of the Surrogate that the transfers were illusory. ( Matter of Halpern, 303 N.Y. 33.) Johnston, Acting P.J., Adel, Sneed, Wenzel and MacCrate, JJ., concur.