O'Connor v. Dunnigan

Smith, P. J.: This action was originally brought by Joseph Gruilfoyle against the Cohoes Savings Institution, to recover the sum of $3,000 which was on deposit in that institution in the name of Mary Norton Gruilfoyle. The defendant, as executrix of the last will and testament of Mary Norton Gruilfoyle, was impleaded. Joseph Gruilfoyle thereafter died and the plaintiff is substituted as his representative. At the trial Joseph Gruilfoyle was allowed to give evidence of personal transactions with his wife, Mary Norton Gruilfoyle, which evidence before the decision of the action was properly stricken out by the trial judge. Apart from the evidence stricken out, however, these facts appear without contradiction. The moneys represented by this deposit were originally deposited by Joseph Gruilfoyle and his wife Mary in this same institution in an account which read: Payable to “Mary Gruilfoyle or Joseph Gruilfoyle. Pay to either or the survivor of either.” Four days before the death of Mary Gruilfoyle, in the absence of Joseph Gruilfoyle, she went to the bank, drew the money and deposited it to an account in her own name. The next day she made a will purporting to dispose of the same. Under this will the defendant executrix claims title to the property. In Kelly v. Beers (194 N. Y. 49) one Kate V. Beers deposited in a savings bank moneys in an account which read as fol [336] lows: “In account with Kate Y. Beers or Sarah E. Kelly, her daughter [the claimant], or the survivor of them.” It was held that this language imported joint ownership by the decedent and claimant with final ownership in the survivor. It was further held in that case that it might be shown by other evidence that it was not the purpose in making the deposit in this form to create a joint ownership of the fund. In the case at bar the original deposit of these moneys was substantially in the same form as in the case cited. It cannot matter whether the moneys originally came from Joseph Guilfoyle or Mary Guilfoyle. The form of the deposit indicated an intent thereby to create a joint ownership with the right of survivor-ship. There is no evidence in the case which in any way would qualify such intent as is the natural import of the language used. As between the bank and Mary Guilfoyle she had the right with the possession of the book to withdraw the moneys from the account. Her change of the moneys, however, from this account to another in her individual name, in the absence of and as far as appears without the consent of Joseph Guilfoyle, could not divest Joseph Guilfoyle of his joint ownership in the property. It would be preposterous to claim that an appropriation of personal property by one joint owner to his personal use could divest the. interest of the other joint owner, or could in any way be presumed to have been by the consent of his co-owner. In order to change the joint ownership which presumptively existed defendant was required to show that the ownership of Joseph Guilfoyle has been voluntarily surrendered.. Of this there is no attempted proof. My recommendation, therefore, is that the judgment appealed from be reversed and that judgment be entered awarding .the moneys in dispute to the plaintiff:, with costs in this court and in the court below: The finding of fact of' which this court disapproves being the finding that Mary Morton Guilfoyle was- at the time of her death the owner of the moneys in question, and this court finds that at all times after the original deposit Joseph Guilfoyle and Mary Guilfoyle were joint owners with the right of survivorship of the deposit in question. ■ All'concurred, except Woodward, J., dissenting in opinion; Howard, J., not sitting.