Opinion
August 6, 1984
Appeal from the Surrogate's Court, Queens County (Laurino, S.).
Decree reversed insofar as appealed from, on the law and the facts, and the matter is remitted to the Surrogate's Court, Queens County, for entry of an amended decree providing that the objection of Gertrude Lieberman to that portion of the account which disallows her amended claim based upon the decedent's alleged conversion of a joint bank account is denied.
The appellant is awarded one bill of costs payable by the respondent personally.
Sometime in 1975, decedent, Friederike Friedman, using funds from a personal savings account in her own name, opened a new savings account at the same bank naming herself and her niece, objectant Gertrude Lieberman, as joint tenants with right of survivorship. Decedent kept possession of the passbook and exercised complete dominion and control over the account, making deposits and withdrawals therefrom personally.
Thereafter, on February 28, 1977, decedent withdrew the sum of $13,066.01 from this account, leaving a balance of $5, and opened a new savings account. The remaining $5 was withdrawn and the joint account with objectant was closed on May 5, 1977. Subsequently, the decedent changed the new account into a joint tenancy with right of survivorship, naming the executrix as joint tenant.
In this accounting proceeding, the Surrogate concluded that the objectant had acquired a one-half interest in the account which decedent had opened in their joint names and that by "withdrawing * * * the entire balance less $5.00 of the account * * * decedent wrongfully converted the half interest therein * * * which belongs to the respondent". We disagree and reverse the decree insofar as appealed from.
While there is a presumption that the parties to a joint account are each entitled to an equal share (Banking Law, § 675), it is well settled that the presumption is not conclusive and may be rebutted by evidence showing that the depositor established the account for convenience and not with the intention of conferring a present beneficial interest on the party claiming the half share ( Wacikowski v Wacikowski, 93 A.D.2d 885, mot. for lv to app den. 60 N.Y.2d 553; Sherman v Georgopoulos, 84 A.D.2d 811; Phillips v Phillips, 70 A.D.2d 30, 38; Filippi v Filippi, 53 A.D.2d 658). This holds true when withdrawals are made by the decedent prior to his death ( Matter of Bricker [ Krimer] v Krimer, 13 N.Y.2d 22, 27; Cinquemani v Cinquemani, 42 A.D.2d 851, 852).
The proof in this case established that the money placed in the joint account with the objectant was the decedent's and that it was not her intention to make a gift to the objectant by the opening of such account. Rather the money was placed in the joint account merely for convenience in the event of illness or death. Indeed, the Surrogate found it "clear from * * * [the decedent's] actions vis a vis the subject accounts that she did not * * * intend" to confer a present interest of one half on the objectant. In such circumstances, we find that the presumption of joint tenancy was effectively rebutted and that it was error to allow objectant's claim ( Wacikowski v Wacikowski, supra; Filippi v Filippi, supra; Cinquemani v Cinquemani, supra; Silbert v Silbert, 22 A.D.2d 893, aff'd 16 N.Y.2d 564).
We also note that the decedent's neighbor was properly permitted to testify concerning the decedent's request that the account be opened in the joint names for the purpose of convenience. The decedent's statements were not hearsay as their probative value rested on the fact that they were made and not on the truth or falsity of the statements themselves (see Loetsch v New York City Omnibus Corp., 291 N.Y. 308, 311; Matter of Doreen J. v Thomas John F., 101 A.D.2d 862). Mollen, P.J., Titone, Lazer and Thompson, JJ., concur.