Opinion
March Term, 1901.
Charles A. Webber, for appellants Larkin and Curry.
William F. Connell, for appellants Duncan and others.
Herbert T. Ketcham, for the respondent.
The next of kin appeal from a decree of the surrogate of Kings county stating the account of the administratrix and directing distribution. The account and the issues raised by certain objections were referred, and the referee's report was confirmed by the decree. The only question raised by this appeal is, whether the administratrix should account for certain moneys which, at the decedent's death, were deposited in three accounts in savings banks. The decedent's name was Christopher Meehan. His wife's name was Mary J. Meehan, and she is the administratrix. Two of the deposits were in the names of "Christopher and Mary Meehan," "Mary J. and Christopher Meehan," respectively, and the third was in the names of "Christopher or Mary Jane Meehan." The referee found that the moneys thus deposited were the property of Mary Meehan. It is admitted that all of these moneys were the moneys of the decedent just prior to the times of the deposits. There were seven accounts touched upon by the evidence which were opened by the decedent or by his authority. For a number of years before his death the decedent gave to his wife moneys for deposit, and subject to his directions she conducted the business incident thereto, including withdrawals. The deposit books were kept in the house, accessible to the decedent at all times. There was evidence of declarations of the decedent that these moneys in question were to belong to his widow after his death, and that the deposits were made so she might obtain them without "any trouble at all." I think that the decision of the learned referee, confirmed by the decree, is right. The rule is that such transactions show the intent of the husband to give the moneys to the wife if she survived him, and upon her survival her title thereto is absolute. ( Sanford v. Sanford, 45 N.Y. 723, 727; S.C., 58 id. 67; Borst v. Spelman, 4 id. 284; Fowler v. Butterly, 78 id. 68; McElroy v. Albany Savings Bank, 8 App. Div. 46, 192.) This principle is commented upon and affirmed in Matter of Albrecht ( 136 N.Y. 91, 95). So far as the expression "or" is concerned in the form of the third account, there is the testimony I have summarized, which is sufficient to sustain the finding of intent. And in each McElroy Case ( supra) and in Fowler v. Butterly ( supra) the names were used with "or" in place of "and." In the first McElroy case the learned court discussed the relative force of "and" and of "or." While I concur in the conclusion reached by the learned justice, I think that the word "or" in no way lessens the force of the form, while it certainly as fully conveys the idea of survivorship. De Puy v. Stevens ( 37 App. Div. 289), cited by the learned counsel in his scholarly and exhaustive brief, was distinguished in the opinion written in that case from the doctrine of the Sanford and McElroy Cases ( supra) as being "materially different" from them because the relation of husband and wife did not exist, while the testimony was said to be "unsatisfactory and unconvincing." (Pp. 292, 295.) Matter of Bolin ( 136 N.Y. 177) did not present the relationship of husband and wife, and the court said that the mere fact of the deposit, in the absence of other evidence, was insufficient.
But one exception is presented. Margaret Larkin, one of the contestants, was sworn and this question was put to her by her counsel: "Q. Did you have a conversation with your father in which the moneys on deposit in a savings bank or banks was the subject thereof and in which the reasons for it being in names was given?" This was objected to as "immaterial, irrelevant and incompetent, and as inadmissible under section 829 of the Code. Objection sustained. Exception." It was conceded on the argument that the objection was sufficient to raise the question of disqualification under section 829 of the Code of Civil Procedure. Mrs. Larkin was one of the daughters and next of kin of the decedent and as such was entitled to share in the residue of the estate. If the estate were increased, her interest was increased in proportion. She was, therefore, interested in the event. She was called as a witness in her own interest, and presumably against Mary J. Meehan, a person who was deriving her title to the moneys claimed by her through or under her husband, the deceased person, and she was asked concededly touching a personal communication made to her by the deceased person. Such testimony is plainly against the prohibition of the statute, which is to prevent the living from proving out of his own mouth a communication between him and the dead, which he could do without either fear or possibility of contradiction. ( Pinney v. Orth, 88 N.Y. 447. See Cornell v. Cornell, 12 Hun, 312, and authorities cited.)
The decree should be affirmed, with costs to the respondent administratrix, payable out of the estate.
All concurred.
Decree of the Surrogate's Court of Kings county affirmed, with costs to the respondent administratrix, payable out of the estate.