
    In the Matter of the Estate of Johanna Krycun, Deceased. Edward Jaworski et al., Appellants; Leo Yacykewych et al., Respondents.
    Argued May 12, 1969;
    decided May 28, 1969.
    
      
      August J. Ginocchio and Stephen J. Jarema for appellants.
    I. Respondent failed to overcome the legal presumption that the four Totten trusts became absolute upon the death of the decedent. Paragraphs “Fifth” and “Seventh” of the will should not be construed as a revocation of the trust accounts. (Matter of Totten, 179 N. Y. 112; Matter of Beck, 260 App. Div. 651; Matter of Schrier, 145 Misc. 593; Matter of Deneff, 44 Misc 2d 947; Matter of Service, 49 Misc 2d 399.) II. This court is respectfully urged to adopt the view taken by the learned dissenting Justice in the court below.
    
      Louis Zimmerman and Emmet L. Holbrook for Leo Yacykewych, respondent.
    I. The decedent, by her probated will and otherwise, revoked the four certain Totten trust savings bank accounts. (Matter of Totten, 179 N.- Y. 112; Walsh, v. Emigrant Ind. Sav. Bank, 106 Misc. 628; Morris v. Sheehan, 234 N. Y. 366; Matter of Richardson, 134 Misc. 174; Rush v. South Brooklyn Sav. Inst., 65 Misc. 66; Moran v. Ferchland, 113 Misc. 1; Matter of Stein, 42 Misc 2d 787; Bernard v. Gantz, 140 N. Y. 249; Matter of Berley, 159 Misc. 560; Matter of Beck, 173 Misc. 733, 260 App. Div. 651.) II. The opinion of the dissenting Justice in the Appellate Division is not based on the applicable law. (Matter of Schrier, 145 Misc. 593; Moran v. Ferchland, 113 Misc. 1; Matter of Voelker, 176 Misc. 362.)
    
      Jerome I. Lessne and Robert J. Silberstein for Yuri Chemokhud, respondent.
    I. The Surrogate and the majority of the Appellate Division decided correctly that paragraph Seventh of the testatrix’ last will and testament specifically revoked all Totten trusts. (Walsh v. Emigrant Ind. Sav. Bank, 106 Misc. 628; Matter of Totten, 179 N. Y. 112; Matter of Stem, 42 Misc 2d 787; Matter of Deneff, 44 Misc 2d 947; Matter of Onody, 33 Misc 2d 497, 17 A D 2d 977; Matter of Schrier, 145 Misc. 593; Matter of Bates, 152 Misc. 627; Matter of Watson, 144 Misc. 213.) II. The scheme and intent of the testatrix’ will, read as a whole, indicates an intention to revoke all previous nontestamentary dispositions and to have all property distributed according to its provisions. (Matter of Beck, 260 App. Div. 651; Moran v. Ferchland, 113 Misc. 1; Matter of Richardson, 134 Misc. 174; Matter of Vetroock, 34 Misc 2d 1073.)
   Scileppi, J.

The order appealed from should be reversed for the reasons stated by Justice Mtjitoeb. in his dissenting opinion at the Appellate Division. We merely add the following to further amplify our position.

As was stated in Matter of Totten (179 N. Y. 112, 126): “ In case the depositor [of a Totten Trust] dies before the beneficiary without revocation, or some decisive act or declaration of disaffirmance, the presumption arises that an absolute trust was created as to the balance on hand at the death of the depositor.”

This presumption may be overcome, however, if the will of the depositor manifests a clear intention to revoke the trust (Matter of Deneff, 44 Misc 2d 947; Matter of Vetroock, 34 Misc 2d 1073; Matter of Richardson, 134 Misc. 174; Walsh v. Emigrant Ind. Sav. Bank, 106 MisC. 628, affd. 192 App. Div. 908, affd. 233 N. Y. 512).

In the case at bar, the testatrix had six separate bank accounts, four of which were in the Totten Trust form and two in her name alone. The language in paragraph Seventh of the will relied upon by the respondent states: “ I give and bequeath any and all funds on deposit to my credit, in any bank or trust company or similar financial institution ”. The majority of the Appellate Division held that this language, in itself, was “ clear and absolute to show the intention of the testatrix to revoke any prior trust bank accounts and to have such proceeds become part of the assets of the estate ”. We do not agree.

If the money on deposit in the four trust accounts comprised all or most of the assets of the estate or if the trust accounts were the only bank accounts in the decedent’s name, that would be a strong indication that the testatrix intended to revoke the Totten Trusts. Such, however, was not the case. The money on deposit in the trust accounts only comprised a little more than one third of the total estate, and as .indicated earlier the testatrix had two bank accounts in her name alone. We conclude, therefore, that the language in paragraph Seventh, in itself, under the facts of this case, is insufficient to overcome the presumption of nonrevocation. In such a case it is necessary to scrutinize the surrounding circumstances and .the will as a whole, very carefully, in determining the true intention of the testatrix. It is our opinion that the posting of interest to the trust accounts up to the date of death, the language in paragraph Thirteenth of the will which contemplated “ property passing outside [the] Will” and the circumstances outlined by Justice Munder in his dissenting opinion all manifest an intention on the part of the testatrix not to revoke.

Accordingly, that portion of the Appellate Division order revoking the four trust accounts should be reversed.

Chief Judge Fuld and Judges Burke, Bergan, Breitel and Jasen concur.

Order reversed and matter remitted to the Surrogate ’.s Court, Queens County, for further proceedings in accordance with the opinion herein, with costs to all parties appearing separately and filing separate briefs payable out of the estate.  