February 15, 1977
In a discovery proceeding, the appeal is from a decree of the Surrogate's Court, Rockland County, dated June 1, 1976, which, after a hearing, held that David McMurdo possessed certain moneys which belonged to the decedent's estate and directed him to transfer the said funds into the administrators' account. Decree affirmed, with costs to respondent payable personally by appellant. The record supports the determination of the Surrogate that there was no evidence of an intent on the decedent's part to make a gift of the moneys. Moreover, the presumption created by section 675 Banking of the Banking Law was rebutted by the showing that the decedent was housebound and probably reposed full trust in the son in whose home she was living (see Matter of Dziadzio, 31 Misc.2d 125). Such a showing was enough to shift the burden of proof to the appellant, a burden which he has not met (see Matter of Donleavy, 41 Misc.2d 28, 30). Latham, Acting P.J., Margett, Suozzi and Mollen, JJ., concur.