
    Matter of the Judicial Settlement of the Account of Robert C. Hewitt, as Sole Surviving Executor of Edward Goodheart, Deceased.
    (Surrogate’s Court, Kings County,
    March, 1903.)
    Trust — Saving’s bank deposit — When additional to a debt due the beneficiary from the depositor — In New York city land taxes accruing before a testator’s death are not a “ debt ” payable out of his personalty.
    Where a person, since deceased, opens an account “ in trust ” for one who is then his creditor, a trust, additional to the debt to the creditor, is created for the latter where it appears that the decedent intended to create a trust and did not intend it as a payment of the debt.
    Taxes in New York city being a lien upon the particular property and not a personal charge against the owner thereof, an executor there cannot, although taxes on land of his testator have accrued before his death, pay them out of the personalty as “ Taxes assessed on the property of the deceased previous to his death ” (Code Civ. Pro., § 2719, subd. 2), and particularly where the executor is devisee of the land.
    Proceedings upon the judicial settlement of the account of an executor. Objections to account.
    
      Richard B. Kelly, for executor.
    George W. Pearsall, for creditor Anna Fithian.
   Church, S.

Objections are filed by a creditor to the executor’s account.

The deceased opened an account in a savings bank in trust for the executor Robert 0. Hewitt for the sum of $250; it also appears that the deceased had made two notes of $100 each to Robert O. Hewitt. Counsel for the contestant contends that such account should be treated as a part of the estate of the deceased or that it should be regarded as a payment by the deceased to the executor of said notes, and therefore that either the executor should charge himself with the amount of such deposit or that he should not be allowed to place such notes among the debts of the deceased.

In numerous decisions it has been held that an account opened in this manner creates an irrevocable trust in favor of: the cestui que trust unless it can be shown to be plainly the intention of the testator not to create such trust. In this case the¡ contestant has called the executor to the witness stand and questioned him in regard to the transaction, and his testimony is clear and explicit to'the effect that after the deceased opened the account in this fashion he stated specifically that it was done for the purpose of making a gift to the executor, whom he evidently regarded as his friend. Thus the presumption created by the form of the deposit is absolutely confirmed by the testimony of the executor.

As to the contention that it was intended in the nature of a payment, there is nothing to assist the contention upon this subject except the presumption that the amount being slightly in excess of the amount of the notes that such was naturally the intention of the deceased. Standing alone, without the testimony of the executor upon this subject, the deposit being slightly in excess of the amount of the notes would raise a very strong suspicion that it was evidently a method of payment intended by the deceased, but upon this proposition the contestant has chosen to question the executor, and the executor swears specifically that at the time that the deposit was so made no mention whatever "was made by the deceased that it was intended as a payment on ■the notes, nor was there any reference, directly or indirectly, made to the notes at that time.

Therefore there is no evidence which would warrant rue in making a finding that this deposit was other than as indicated on its face, or that it was intended for the payment of these notes, and the executor, therefore, has properly drafted his account in regard to these two items.

The other objection to this account is that the executor has paid, out of the personal estate of the deceased, certain taxes and assessments levied in deceased’s lifetime upon real estate, situated in the city of Hew York, which was specifically devised to the said executor in his individual capacity.

Counsel for the executor contends that under the provisions of section 2719 of the Code these taxes were entitled to be treated as debts of the decedent, and that, therefore, being debts of decedent, it was the executor’s duty to satisfy them out of the personal estate. This proposition, it seems to me, is correct in the abstract reference to taxes, as taxes as they are generally imposed constitute a personal obligation which must be paid by the citizen, for nonpayment of which personal process in the nature of distress or the sale of his goods may be enforced against him or his personal property. But, in relation to taxes imposed ■on property situated in the city of Hew York,, and local assessments therein, the rule is different, as such taxes or assessments are made a lien upon the particular property, and are not a general or personal charge against the individual owning the same. The proceedings for their collection are entirely in rem, and no relief can be enforced against the owner of the same. This distinction is clearly pointed out in the case of Krueger v. Schlinger, 19 Misc. Rep. 221. That being the case, the executor, who was a specific devisee of this property in question, had no power to pay the taxes and assessments which were a lien upon such property during the lifetime of the deceased from out of the personal' estate of said decedent, and, consequently, such payments should be disallowed.

Let decree be settled accordingly.

Decreed accordingly. •  