Decree of the Surrogate’s Court of Kings county reversed upon .the law and the facts, with costs to appellant, payable out of the estate, and decree directed to be entered in accordance with the account as filed by appellant. Appellant, as executor, filed in the Surrogate’s Court a voluntary accounting from which it appeared that appellant and his testatrix were joint depositors in three savings banks under which the survivor was, on the death of the other, entitled to the balance. There being no evidence of fraud or undue influence on the part of appellant in the making of the deposits, appellant, as executor, cannot be surcharged with the balance of the deposits. His rights to such deposits vested in him at the time the accounts were created. (Matter of Tilley, 166 App. Div. 240, 242; Banking Law, § 249, subd. 3.) Rich, Hagarty, Carswell and Scudder, JJ., concur; Lazansky, P. J., in result.