Alfred and Hannah Blumenthal were husband and wife. Alfred died on June 12, 1921, and Hannah twelve days later. Each left a last will and testament, which have been admitted to probate and letters testamentary issued to the executors therein named. During their lifetime they owned certain real estate in the city of New York as tenants by the entirety, which they sold, taking in payment a bond of the purchaser, the payment of which was secured by a purchase-money mortgage. The purchase price of the *Page 455 real estate was made payable by the terms of the bond and mortgage to Alfred Blumenthal and Hannah Blumenthal, his wife. At the time of Alfred's death the bond and mortgage were in his possession and since his death the same have been retained by his executors, they refusing to turn the same over to the executors of Hannah. This proceeding was instituted to compel such delivery. The surrogate found, upon facts which were not disputed, that the bond and mortgage belonged to Hannah, she having survived the death of her husband, and directed his executors to deliver the same to her executors. On appeal to the Appellate Division the order was unanimously affirmed. The appeal to this court is by permission.
I am of the opinion that Hannah, having survived the death of her husband, thereby became the owner of the bond and mortgage. This conclusion, it seems to me, is sustained by the great weight of authority in this country and in England. (See George v.Dutton, 8 Am. Law Rep. Ann. 1014, note, p. 1017, and authorities there cited.)
In reaching this conclusion I am not unmindful of the fact that this court has held that the law does not recognize such a thing as tenancy by the entirety in personal property. (Matter ofAlbrecht, 136 N.Y. 91; Matter of McKelway, 221 N.Y. 15.) It does, however, recognize such an interest in personal property, whether it be called tenants by the entirety, tenants in common, or any other name, that where securities be taken in the names of a husband and wife, the right of survivorship exists, unless there be something to show a contrary intent. Thus, where one loaned money and took from the borrower a promissory note payable to the order of himself and his wife, it was held the same belonged to her as survivor. (Sanford v. Sanford, 45 N.Y. 723. ) This authority was cited with approval in Fowler v.Butterly (78 N.Y. 68, 72); also in Augsbury v. Shurtliff *Page 456 (180 N.Y. 138, 147). In the latter case the court said: "When a husband takes securities payable to himself and his wife, they become hers if she survives him, and delivery thereof to her by him is not necessary to perfect the gift. * * * This is upon the theory of a gift where there is no consideration, but where there is a contract between husband and wife, resting upon a mutual and equal consideration, providing that the security created by both and standing in their names severally shall belong to the survivor, effect must be given to it or the law of contracts is violated."
It has been held that where a husband deposits money in a savings bank in the name of himself and wife, the presumption is, in the absence of evidence to the contrary, that he intended to confer upon her the right of survivorship, even though he never delivered the bank books to her and made certain withdrawals from the account. (West v. McCullough, 123 App. Div. 846; affd.,194 N.Y. 518.)
The same presumption prevails where a husband purchases securities with his own funds and takes title thereto in the names of himself and wife. (Matter of Kaupper, 141 App. Div. 54; affd., 201 N.Y. 534. See, also, Matter of Thompson,167 App. Div. 356; affd., 217 N.Y. 609.)
Nor have I been able to find any authority in this state to the contrary, except Matter of Baum (121 App. Div. 496), and that case, I think, was overruled by West v. McCullough (supra). The doctrine of that case certainly has not been approved by this court as the authorities above cited indicate.
The title to the real estate was held by the husband and wife as tenants by the entirety. The presumption is, if a presumption is to be indulged in, that both contributed towards its purchase. The mortgage took the place of the real estate and on the death of either mortgagee passed to the survivor, as the real estate which it replaced would have done. (Matter of Kennedy, *Page 457 186 App. Div. 188.) Had cash been paid and deposited in a bank to the credit of the husband and wife, it unquestionably, on the death of one, would have passed to the survivor. On principle and authority I am unable to see that a different rule should be applied because a bond and purchase-money mortgage were taken instead of money.
I, therefore, dissent from the decision about to be made and vote to affirm the order appealed from.
HOGAN, CARDOZO, POUND and ANDREWS, JJ., concur with CRANE, J.; McLAUGHLIN, J., reads dissenting opinion, with whom HISCOCK, Ch. J., concurs.
Orders reversed, etc.