Walsh v. Keenan

The suit is brought by plaintiff Margaret Walsh to establish her rights in a bank account opened on August 21, 1940, in the Onondaga County Savings Bank. On that date the Bank, pursuant to instructions from plaintiff's sister, Kate D. O'Brien, now dead, transferred $3,468.29 from another account then standing in the name of Kate D. O'Brien to a new account in the names of herself and plaintiff. The new account was set up in this form: "Miss Kate D. O'Brien or Mrs. Margaret Walsh, either or survivor may draw." The use of that particular language carried important consequences. "When a bank account is opened in the form prescribed by statute (Banking Law, § 249, subd. 3), a presumption at once arises that the interest of the depositors is that of joint tenants" (Marrow v. Moskowitz, 255 N.Y. 219,221). As to any moneys withdrawn from such an account during the joint lives of the two named persons, there is still, after the death of either of them, the presumption that the moneys so withdrawn by one had in fact belonged to both. (Moskowitz v.Marrow, 251 N.Y. 380, 397; Marrow v. Moskowitz, supra;Matter of Porianda, 256 N.Y. 423, 426; Matter of Juedel,280 N.Y. 37, 42.) "The withdrawal of moneys from the joint account does not destroy the joint tenancy, if one was created; it merely opens the door to competent evidence, if available, that no joint tenancy was originally intended or created" (Matter of Porianda,supra, p. 426). If the fact be, as in this case it has been found to be by both *Page 581 courts below, that a joint tenancy was intended and created, then, obviously, neither owner can destroy the joint tenancy by drawing out the funds. "It would be preposterous to claim that an appropriation of personal property by one joint owner to his personal use could divest the interests of the other joint owner" (O'Connor v. Dunnigan, 158 App. Div. 334, 336, affd. 213 N.Y. 676, quoted in Moskowitz v. Marrow, supra, p. 394). One joint tenant cannot be "ousted from such tenancy" by the act of the other in drawing out moneys. (Matter of Klenk, 165 App. Div. 917, affd. 214 N.Y. 715.)

Such is the law as long settled by the courts. Let us apply it to the history of this joint account opened in the name of these two sisters in 1940. About a year after that opening, Kate D. O'Brien took it upon herself to draw out all the money without the knowledge or consent of plaintiff, her sister. With the money so withdrawn, Kate D. O'Brien set up, or attempted to set up, a new joint account in the name of herself and a grandnephew, James E. Keenan. Later she made various other changes and transfers. At her death in February, 1942, there was left in the bank, in the joint names of Kate D. O'Brien and her nephew James P. Keenan a balance of $1,245.14, plainly shown to be part of the $3,468.29 which had originally been in the joint account of plaintiff and Kate D. O'Brien. The nephew says that he is the survivor of himself and Kate D. O'Brien and thus, by conclusive presumption of the statute, shown to be the owner of the balance. Plaintiff says that she is entitled to the benefit of the presumption that the moneys deposited in 1940 ($3,468.29) were the property of herself and Kate D. O'Brien. She asserts, and the courts below have properly held, that Kate D. O'Brien did not, and could not, dispose of plaintiff's half interest in the account merely by taking it out of the bank and handing it back to the bank under different names. The trial court found as a fact that the July 1940 opening of that account created a true joint account. The Appellate Division affirmed that finding of fact. We cannot reverse unless the statutory presumption has been overcome conclusively, beyond doubt, and as matter of law, by evidence in this record. (See discussion in Matter of Juedel, supra, 280 N Y at p. 42.) Not only was there here no such conclusive showing against the presumption; there was no evidence of any kind whatever that *Page 582 the original intention was not to create a joint estate in the fund. Defendant Keenan's request for a finding to that effect was refused. Indeed, beside the presumption of joint tenancy, there is considerable real proof that such was the purpose of the 1940 transaction. Plaintiff was Kate D. O'Brien's only sister. Plaintiff had cared for and nursed Kate D. O'Brien for years when the latter lay sick at plaintiff's home. Plaintiff's daughter testified to Kate D. O'Brien's instructions as to opening the joint account in 1940. No witness or no fact spoke the other way. On such a record we cannot possibly overturn the findings of fact below in favor of plaintiff.

While plaintiff was plainly entitled to a determination in her favor, the judgment is, however, too large and should not have run against Keenan. As aforesaid, the 1940 bank account in which plaintiff has established her joint ownership, was in the original amount of $3,468.29. The courts below awarded plaintiff half thereof, or $1,734.14, plus the bank interest thereon, totalling $1,780.71. There was, however, only $1,279.14 left in the bank at Kate D. O'Brien's death, so the judgment was that the bank pay plaintiff the $1,279.14 balance and that defendant Keenan, the nephew, pay the difference of $501.17. Keenan has appealed. The recovery against him was based on findings that before Kate D. O'Brien's death, he (defendant Keenan) drew out a total of $1,845. But there are other unreversed findings to the effect that all those withdrawals by Keenan were for the benefit of, or at the direction of, Kate D. O'Brien, and were not for any purposes of Keenan's. Those withdrawals were, therefore, the acts of Kate D. O'Brien through Keenan acting only as her agent. Keenan did not commit any actionable wrong against plaintiff and is not accountable to her. The judgment should be modified by striking out so much thereof as orders defendant Keenan to make any payment, and as so modified, should be affirmed, without costs.

LEWIS, CONWAY and THACHER, JJ., concur with RIPPEY, J., DESMOND, J., dissents in opinion in which LEHMAN, Ch. J. and LOUGHRAN, J., concur.

Judgments reversed, etc. *Page 583