Kleinberg v. Heller

Lupiano, J. In this discovery proceeding commenced by the executor of the estate of Jessie Lang against Harriet Heller, survivor-tenant of a joint savings account, the survivor-tenant appeals from so much of the decree of the ¡Surrogate’s Court, Bronx County ('Gel-bawd, S.), entered April 24, 1974, which adjudged and decreed that Harriet Heller pay to the executor money she withdrew from the joint savings account in excess of her moiety during the lifetime of1 the decedent Jessie Lang. The Surrogate observed as follows (76 Misc 2d 636): “ Decedent died on March 31, 1972 at the age of 91. Until October, 1968, she occupied an apartment jointly with her daughter. In that month her daughter died and decedent continued to occupy the apartment alone until August. 20, 1970 * * * From August 20, -1970 until her death decedent was a resident of a nursing home * * * At a date which was never definitely established by either party at the hearing, decedent opened a savings account at .the Bankers Trust Company with the respondent niece [Harriet Heller] as a joint tenant with right of survivorship. The testimony does suggest that this account was opened at sometime during 1969. Respondent [Harriet Heller] conceded that on August 31,1970, she withdrew $1,094.90 from this joint account * * * Respondent further conceded that in March, 1971, she withdrew the -sum of $5,469.89, the then entire -balance in the Bankers Trust Company account, and transferred it to an account in the name of herself and her husband, as joint tenants. All of the funds in the joint account were deposited therein by the decedent. Absolutely no evidence was adduced at the hearing to in any way impugn the presumption in favor of respondent’s joint tenancy created by section 675 of the Banking Law.” The crucial issue in this proceeding is the effect of the withdrawal of more than one half of the funds in a joint savings account during the lifetime of both joint tenants upon the surviving tenant who withdrew such funds. The well-reasoned and comprehensive analysis by Surrogate Sobel in Matter of Filfiley (63 Misc 2d 824, affd. on the opinion of the Surrogate in 43 A D 2d 981 [2d Dept., 1974]) is dispositive of this issue. In that case, it is declared (pp. 829-830): “ there are no circumstances in which the survivor will be entitled to less than the whole fund where one of the tenants has withdrawn more than his moiety cmd the right of survivorship has vested in either one of them since a withdrawing joint tenant can only suffer a forfeiture to a survivor in whom that right has vested. In short, after a right of survivorship has vested, there should in [516] legal theory never he a recovery of half the fund or the excess over the moiety. The survivor must take all. Only while both joint tenants are still living may the recovery be for the excess over the moiety withdrawn.” Since more than a moiety is unilaterally inalienable by either joint tenant, withdrawal of the whole fund is a nullity (see Matter of Suter, 258 N. Y. 104 [1932]). On this record, the Surrogate has specifically concluded that a joint tenancy was intended as to the account under consideration herein. This is a critical finding (see Matter of Bricker v. Krimer, 13 N Y 2d 22 [1963]; Matter of Porianda, 256 N. Y. 423 [1931]). Accordingly, the statutory provision for a joint tenancy relationship in respect of joint bank deposits impels the conclusion that the surviving joint tenant, Harriet Heller, did not effect a termination of the joint tenancy in respect of the excess of her moiety. The decree should be reversed on the law, without costs or disbursements, and the petition dismissed.