In re the Accounting of Polizzo

Desmond, J. When Minnie (sometimes called Amelia or Amelia Anna) Wigger married Joseph Polizzo in 1917, she owned in her own right and her own name a $20,000 bond and mortgage. Shortly after her marriage she assigned the bond and mortgage to one Bautz, an attorney, the stated consideration being $100, and at the same time Bautz, for an expressed consideration of $100 “ paid by Joseph Polizzo and Amelia Anna Polizzo, his wife * * * parties of the second part ” assigned the bond and mortgage to the parties of the second part. The habendum clause in the latter assignment was, in full, as follows: “ To.have and to hold the same to the party of the second part, and to the successors, legal representatives the survivor, such survivor’s heirs, assigns of the party of the second part, forever, subject only to the proviso in said indenture of mortgage mentioned.” Attorney Bautz, as is obvious, acted as a conduit only. There is no evidence that the husband paid [520] his wife anything for the transfer. The question of law on this appeal is: did the husband acquire a present joint ownership in the bond and mortgage, or a right of survivorship only, as to it? Minnie Polizzo became incompetent in 1928, remained incompetent, and was a patient in a mental hospital till her death in 1953. Her husband, although not appointed as committee of her property till 1945, managed her affairs, including this bond and mortgage. The husband died in 1948. In the present proceeding, which is an accounting by Joseph’s executor as to Joseph’s committeeship, a dispute arose as to the ownership of the bond and mortgage above described. In 1947, Joseph Polizzo had executed and delivered to Harrison B. Wright (who was his attorney and is now his executor accounting here as to Joseph’s proceedings as committee of the latter’s wife) an assignment or purported assignment of a one-half interest in the bond and mortgage. The assignment recites a consideration of $8,500, one half the amount of the bond and mortgage as somehow reduced by $3,000 during Minnie’s life. Special Term held that Joseph Polizzo, the husband, never had more than a survivorship interest in the bond and mortgage, and that, accordingly, and since he predeceased his wife, he had no assignable interest therein, and that nothing passed by his assignment to respondent Wright. The Appellate Division, however, held unanimously that the assignment from attorney Bautz to Polizzo and his wife created a joint tenancy in the bond and mortgage, each thereafter owning an undivided half interest therein, and that the husband’s assignment to Wright was effective to terminate the joint tenancy, and that, thereafter, Wright and Mrs. Polizzo were owners in common. We agree with the Appellate Division. If Minnie and Joseph had not been wife and husband at the time of the assignment of the mortgage to them, they would have become joint tenants with right of survivorship, and with the further right in each of them to terminate the joint ownership and create a tenancy in common, by conveying his or her interest to a third party (Matter of Suter, 258 N. Y. 104, 106). If the bond and mortgage had been owned originally by the husband and he had assigned it to himself and wife during marriage, or if he furnished the consideration and arranged to have it made to himself and his wife (with no inconsistent [521] habendum clause, see second last paragraph of this opinion), then there would apply a presumption, in the absence of proof to the contrary, that the husband intended that his wife have a survivorship right only, and not present ownership of one half, or of any other part (Matter of Albrecht, 136 N. Y. 91; West v. McCullough, 123 App. Div. 846, affd. 194 N. Y. 518; Matter of McKelway, 221 N. Y. 15; Matter of Kane, 246 N. Y. 498; Belfanc v. Belfanc, 252 App. Div. 453, affd. 278 N. Y. 563). But none of those cited cases, and no others we find, deal with a transfer from a wife to her husband, without proof of consideration or specific intent. In the West case (123 App. Div. 846, 847, 848, 849, supra), it is explained that the rule creating the presumption above described (and operative as to a husband-to-wife transfer) is an aspect or result or vestige of the common-law rule that a husband owned all his wife’s personalty, and that thus, when he purported to pass to her an interest in his own personalty, he could not have intended to give her anything greater than a right of survivorship. And consideration or lack thereof, in those common-law situations, had nothing to do with the matter, since the wife’s personalty was the husband’s, and so he would always be furnishing the consideration. But none of that historical theory has any impact on a modern-day transfer by a wife of her own personal property to herself and her husband, jointly. The question seems to be of first impression in this court. We might, therefore, choose to use the old (husband-to-wife transfer) presumption, in the absence of proof as to actual intent, that survivorship only was intended. But, since that presumption is a remnant only of a body of law that never did apply to transfers from wife to husband, we see no reason for giving it a new application to a new situation. In other words, we decline to enlarge the coverage of the old presumption. Therefore, and since the assignment to Joseph Polizzo and Minnie Polizzo would have "created a present joint tenancy had they been unmarried, we hold that the same kind of tenancy was created, notwithstanding their marital relationship. There is nothing in the above-quoted language of the habendum clause in the assignment from Bautz to the Polizzos to require a different result. That inartistically drawn clause reads: “ to the party of the second part, and to the successors, legal representatives the survivor, such survivor’s heirs, assigns of the [522] party of the second part ”. Presumably the words “ the survivor, such survivor’s heirs ” were dropped into the middle of the customary verbiage to show an intent that, on the death of either husband or wife, the whole bond and mortgage should become the property of the survivor. But the very same clause makes the assignment run to “ assigns of the party of the second part ”, and that language expresses the transfer of a present interest to the ‘ ‘ party ’ ’ of the second part. The order should be affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate.