Opinion
July 10, 1967
In a discovery proceeding, decree of the Surrogate's Court, Kings County, dated November 28, 1966, reversed, on the law and facts, with costs to appellants and respondent, payable out of the estate; petition for discovery granted; and respondent directed to deliver the subject property and asset to the appellants-executors. The subject of this proceeding is a $2,800 interest in a partnership investment club, which interest was owned by the decedent in his own name at the time of his death; it had been purchased by him in his own name. In accordance with a provision of the partnership agreement, the surviving partners paid the $2,800 interest to his widow, the respondent. This court previously held that provision to be an attempted invalid testamentary disposition ( Matter of Hillowitz, 24 A.D.2d 891). However, we remitted the proceeding for further hearing with respect to the widow's contention that she was nevertheless entitled to the asset because it was purchased with joint funds and was a jointly held asset due her by right of survivorship. The learned Surrogate, in confirming the report of a Referee before whom the issue was heard, has agreed that the widow was entitled to the asset by right of survivorship. While there can be no dispute that at least $1,650 of joint checking account moneys of the decedent and respondent were used by the decedent to purchase his individual partnership interest, there is absolutely no evidence to show how the character of joint ownership may be imposed on that partnership interest. The joint account had over $18,000 in deposits during its three year existence. Even if we assume that, for his purchase of the partnership interest, the decedent took the entire $2,800 from jointly owned moneys in that account, this is still far short of his entitlement to expend and use personally his moiety or less, as he sees fit ( Matter of Suter, 258 N.Y. 104; Matter of Bricker [ Krimer] v. Krimer, 13 N.Y.2d 22; see, also, Jackenthal v. Jackenthal, 285 App. Div. 1074). Thus, the decedent's estate was the proper recipient of the partnership interest asset upon his decease; the widow was not entitled to payment under the partnership agreement ( Matter of Hillowitz, 24 A.D.2d 891, supra) or under any theory of joint ownership with right of survivorship. Christ, Acting P.J., Brennan, Rabin, Hopkins and Nolan, JJ., concur. [ 51 Misc.2d 666.]