The determinative facts are not in dispute. The decedent, prior to entering a nursing home at an advanced age and after the death of her daughter, opened a joint account with right of survivorship with her niece, the funds for which came solely from the decedent. There is no allegation of any undue influence on the niece’s part, and, without regard to the funds in the joint account, the decedent left a fairly substantial estate, virtually all of which went to charity. Prior to decedent’s death, the niece withdrew the entire balance of $5,469.89 from the joint account. If she had not withdrawn the money, it would later have been hers by right of survivorship.
The only question raised, which led to.the Surrogate’s decree that the niece pay to the executor that part of the joint account withdrawn in excess of her moiety, is the wrongfulness of the withdrawal without the consent of the joint tenant. The Surrogate relied upon a dictum in Matter of Bricker v. Krimer (13 N Y 2d 22 [1963]). There is a contrary view expressed by Surrogate Sobel in Matter of Filfiley (63 Misc 2d 824, affd. on opn. of Surrogate in 43 A D 2d 981 [2d Dept., 1974]).
In my view, it is unnecessary to engage in a semantic discussion over which approach is correct, analyzing subdivision (a) of section 675 of the Banking Law onrjoint deposits and the meaning thereof, the question of the Dead Man’s Statute, CPLB 4519; etc. Inasmuch as there is no dispute that the money would have belonged to the niece if she had left it in the account, and the decedent never took or attempted to take *517any action to change the situation prior to her death, the niece should he entitled to the full amount in the account as if it had remained there, and her premature withdrawal matters not.
Markewich, J. P., concurs with Lupiano, J.; Kupferman, J., concurs in a separate opinion; Murphy and Tilzer, JJ., dissent and vote to affirm on the opinion of the Surrogate.
Decree, Surrogate’s Court, Bronx County, entered on April 24, 1974, so far as appealed from, reversed, on the law, without costs and without disbursements, and vacated, and the petition dismissed.