(dissenting). Court decisions to the effect that the Surrogate’s Court is without jurisdiction to enforce a claim on behalf of a representative of an estate against a bank for moneys on deposit in the name of a decedent are not, in my opinion, controlling here.
In this case the bank account prior to the transfer of the balance thereof to the bank, was in the name of the executrix. She must eventually account for it. When the bank on April 11, 1951, transferred to itself the entire balance on deposit to the credit of the executrix it acted upon the theory that because of certain underlying facts it became the owner of the fund and *205entitled to its possession. The position of the executrix, as shown by her petition, is not based upon the debtor-creditor relationship, but upon the theory that the estate is the owner of the fund transferred from the account and that she, as executrix, is entitled to the possession of it. The bank’s answer to the petition asserts that the bank is the owner and entitled to the possession of the money.
Sections 205 and 206 of the Surrogate’s Court Act by the terms thereof establish a procedure by which the representative of an estate may apply to the Surrogate’s Court for a determination of title and right to possession of money or other personal property as against one claiming such title or right to possession. (See Matter of Ort, 217 App. Div. 422, 424; Matter of Akin, 248 N. Y. 202; Matter of Wilson, 252 N. Y. 155, and Matter of Jacobsen, 178 Misc. 479.)
The bank’s claim of ownership is inconsistent with and does not rest upon the debtor-creditor relationship. The bank deposit. is no longer in existence and the claim of the executrix is that the bank transferred to itself from the bank deposit, and now holds in its individual capacity, property belonging to the estate and that she is entitled to the possession thereof.
In my view of it, the Surrogate’s Court possessed jurisdiction to entertain the proceeding, determine the issues and make a decree thereon. We should accordingly determine the appeal upon the merits. I therefore dissent from the decision which is being made.
All concur except McCtjrh, J., who dissents in a separate opinion. Present — Taylor, P. J., McCttrk, Kimball, Piper and Wheeler, JJ.
Order reversed on the law, with costs to the appellant payable out of the estate and proceeding dismissed.