
    Greenwich Savings Bank, Appellant, v United States Fidelity and Guaranty Company, Respondent.
    Argued January 8, 1976;
    decided February 10, 1976
    
      Benedict Ginsberg and Philip A. Mittleman for appellant.
    I. The acts of Celia Weiss as they relate to the bank were performed as administratrix of the estate and not in her individual capacity. (Matter of Manning, 244 App Div 9.) II. The moneys procured from the bank, in the form of the bank’s check to the estate, went directly into the estate account, and a debtor-creditor relationship was thereupon created.
    
      Frank C. McLaughlin, Jr., for respondent.
    I. As a matter of law the bond of an administrator does not stand as security for property received by the administrator which is neither an asset of the estate nor subject to distribution by him, and as to which, as administrator, he is not entitled. (Bradley v Roe, 282 NY 525; Douglass v Mayor, 56 How Prac 178; Kirchner v Muller, 280 NY 23; Matter of Flannery, 170 Misc 92.) II. No debtor-creditor relationship was created between the estate of Louis Weiss, deceased, and the Greenwich Savings Bank because Celia Weiss as administratrix had no authority to collect the bank account in question and the estate was a mere conduit through which the funds passed into the hands of Celia Weiss individually. (Ernst Iron Works v Duralith Corp., 270 NY 165; Seagle v Barreto, 190 App Div 549, 231 NY 586.) III. The case at bar is readily distinguishable from cases which have held the administrator’s surety liable where the property involved was not an asset of the estate but the administrator was duty bound to collect it and to distribute it to the person entitled thereto. (Matter of Manning, 244 App Div 9; Hildreth v Raffin, 141 App Div 77; Matter of Flachner, 169 Misc 112.) IV. As a matter of law, the granting of leave to sue is not a determination that a cause of action exists. (Kent v West, 33 App Div 112, 163 NY 589.)
   Memorandum. The order of the Appellate Division should be affirmed.

Some 15 years after her husband’s death, his widow sought and obtained letters of administration on his estate, posting an administrator’s bond issued by respondent. Armed with a certified copy of her letters, on the basis of an affidavit as to loss of the passbook, the widow withdrew $13,000 from a savings account at appellant bank in the same name as that of her husband. The withdrawal was in the form of a check payable to the decedent’s estate which on the same day was deposited in a new account opened by the widow in the name of the estate at another bank. The widow thereupon withdrew the funds and closed the new account. She died some 11 months later leaving no assets of her own or of her husband’s estate.

Thereafter the true depositor sought to make a withdrawal from his account at appellant bank and the scheme came to light.

With the consent of the Surrogate’s Court, appellant bank brought the present action against respondent surety company on the administrator’s bond. Supreme Court granted respondent’s motion to dismiss the complaint under CPLR 3211 (subd [a], par 7) for failure to state a cause of action, and the Appellate Division affirmed.

The surety bond in question, issued for the benefit of "persons then and thereafter interested in the [decedent’s] estate” was conditioned on the faithful execution of the trust reposed in the widow as administratrix of the goods, chattels and credits of the decedent’s estate and her obedience to orders of the Surrogate’s Court.

Assuming without deciding that appellant bank could bring itself within the class of persons interested in the decedent’s estate and thus was entitled to the benefit of the surety bond, we note that the bond related only to actions by the widow as administratrix of her husband’s estate. The withdrawal of the funds from the account of the stranger depositor bearing the same name as the decedent and thereafter running those funds through the estate account were the acts of the widow in her individual capacity rather than in her fiduciary capacity. While appellant bank might have been able to trace the funds into the estate account and recover them had the fraudulent scheme been uncovered before the estate account had been closed, the moneys in question were never assets of the decedent’s estate and did not become so by being deposited in the estate account. The machinations of the widow parading as an administratrix were of her individual doing and did not come within the coverage of the estate fidelity bond.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed, with costs, in a memorandum.  