
    (85 Misc. Rep. 659)
    In re HESS’ ESTATE.
    (Surrogate’s Court, Bronx County.
    May, 1914.)
    Courts (§ 200½)—Sueroqate’s Court—Ownership of Deposit—¿Turismotion to Determine.
    The Surrogate’s Court has no jurisdiction on motion to determine whether money deposited in a savings bank in the joint names of decedent and another is the property of the survivor, where the form of the deposit does not as a matter of law vest the ownership in the survivor.
    [Ed. Note.—For other cases, see Courts, Cent. Dig. § 479; Dec. Dig. § 200%.*]
    In the matter of the estate of George Hess, deceased Motion to compel delivery of savings bank book.
    Motion denied.
    Louis A. Cuvillier, o.f New York City, for the motion.
    Ernest E. L. Hammer, of New York City, public administrator, opposed.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   SCHULZ, S.

The moving party, the committee of an incompetent, applies for an order directing the public administrator to deliver to him, as such committee, a savings bank book issued to “George Hess, or Emma Hess,” the former being deceased, and the latter being an incompetent and not the wife of the decedent, upon the ground that the same and the moneys whose deposit is evidenced thereby are the property of the incompetent and form no part of the decedent’s estate. The public administrator has possession of this book with other property alleged to belong to the decedent, as also of a document purporting to be the will of the decedent. No letters have been issued to him upon the estate of the decedent, nor has the will been offered for probate.

The right of the committee to the possession of the book involves the question whether the deposit in the manner indicated is a j oint deposit to which Emma Hess became entitled by reason of her survivorship. The form of the deposit of itself, in my opinion, does not as a matter of law vest the ownership of the money deposited in her. Matter of Bolin, 136 N. Y. 177, 32 N. E. 626; Kelly v. Home Savings Bank, 103 App. Div. 141, 92 N. Y. Supp. 578; De Puy v. Stevens, 37 App. Div. 289, 55 N. Y. Supp. 810. The intent of the parties would have to be ascertained from all of the surrounding circumstances. What the intent was when such deposit was. made is a question of fact which I cannot decide upon an application such as this. If the public administrator is unlawfully withholding property which belongs to the incompetent, the committee has a remedy which he can enforce by an action in which evidence can be adduced, upon which findings of fact can be based.

For the reasons stated, the motion must- be denied, without costs.

Ordered accordingly.  