Opinion
May 4, 1938.
Present — Sears, P.J., Lewis, Cunningham, Taylor and Dowling, JJ.
Decree modified on the law by limiting its effect to the deposit in the Buffalo Savings Bank at the death of the testatrix, with earned interest, which deposit is decreed to be the property of the petitioner, without prejudice to any claim by Andreia Giallombardo which may be made by him against the estate of Nicoletta Polito, or the executor thereof, for the balance, if any, alleged to be due to him from said estate by reason of the fact that on January 21, 1924, and on various dates thereafter, the decedent received from the petitioner funds to be held by her in trust for his use and benefit, and as modified affirmed, without costs. Memorandum: We are of the opinion that under section 206-a of the Surrogate's Court Act, the surrogate was without authority in this proceeding to direct the executor to pay over to petitioner a sum of money in excess of that which stood to the credit of the decedent in her account in Buffalo Savings Bank on the date of her death, with earned interest thereupon. All concur. (The decree directs the executor of decedent's estate to pay to petitioner money held in trust by decedent for petitioner.)