
    SMITH’S ESTATE.
    
      N. Y. Surrogate's Court;
    
    November, 1885.
    Executors and Administrators; proceeding to recover assets WRONGFULLY WITHHELD.—SAVINGS BANKS; TITLE TO DEPOSIT.
    Ill the absence of extrinsic evidence, a savings bank deposit, represented by a pass-book in the name of “ Michael Smith, Mary Smith, administratrix,’’goes upon the death of Mary to the administrator de bonis non of Michael, and not to the representative of Mary, although she was entitled to share in the deposit.
    Where the pass-book is in the name of “Michael Smith for Mary Smith,” the deposit belongs to Mary Smith, and upon her death goes to her representatives.
    Where the pass-book is in the names of “ Michael and Mary Smith,” the deposit, being joint, upon the death of Michael vests in Mary, and, upon her death, in her representatives, who hold, to the extent of Michael’s interest in the deposit, as trustees for all persons interested in his estate.
    Where the pass-book is in the names of “Michael and Mary Smith, either to draw,” upon the death of Michael followed by that of Mary, the representative of either of the deceased persons is alike entitled to draw, and the one in possession of the pass-book will not be required by the surrogate to surrender it to the other in proceedings undeer Code Civ. Pro. § 2712.
    So, also, where the pass-book is in the name of “ Michael Smith or wife, Mary.”
    The ruling in Matter of Curry, 25 Hun, 321,—that the surrogate can only decree that possession of property be delivered to the representative of the deceased party where it clearly appears that such possession is wrongfully withheld,-—applied.
    Proceeding by the administrators of the estate of Mhry A. Smith to obtain possession of savings bank pass-books as belonging to said estate.
    The facts appear in the opinion.
   Rollins, Surr.

—One Michael A. Smith, died in January, 1883, leaving this decedent, his widow, him surviving. She obtained letters of administrationpn her husband’s estate in May, 1883, and continued to hold such letters until July 25, 1885, when she died.

On the 7th of August last, the petitioners in the present proceeding were appointed administrators of her estate.

On October 9, two months later, the public administrator was appointed administrator de bonis non of the estate of Michael.

While Michael and Mary were both alive, deposits were from time to time made in certain savings institutions, and in all these deposits both husband and wife seem to have had an interest. The pass-books of these various banks, nine in number, were in the possession and control of the decedent, and at her place of residence on the day of her death.

It is alleged by the petitioners, and is not denied, that these books were subsequently taken into the custody of one Rosanna Ryan ; that three of them, all standing in the name of the decedent, she surrendered to these petitioners, and that she caused the remaining six to be delivered to the public administrator, who now has them in his charge.

The petitioners seek by this proceeding, instituted under title IV. of chapter XVIII. of the Code of Civil Procedure, to obtain possession of these six bankbooks, and of three in particular which they describe as “ standing in the joint names of Michael and Mary Smith.”

As to the sources from which the moneys here in question were derived, there is no evidence whatever. The character of the accounts and the respective claims of persons interested in the deposits must therefore be determined for the purposes of this proceeding by the names that appear upon the books themselves. They may be divided into five classes.

1. Two of them stood originally in the name of Michael A. Smith,” and since his death have stood in the name of “Michael A. Smith, Mary Smith, administratrix.”

The four others are in the names following:

2. “ Michael Smith for Mary Smith.”
3. “ Michael and Mary Smith.”
4. “ Michael A. and Mary Smith, either to draw.”
5. “Michael A. Smith or wife, Mary.”

Class 1. The two books in this class should remain in the hands of the administrator de bonis non. Where A., the administrator of a decedent B., dies leaving assets of B. unadministered, such assets go to B.’s administrator de bonis non, and not to the representative of B.’s original administrator (Donaldson v. Raborg, 26 Md. 312); and this is the case even though such original administrator was entitled to share in the assets of his decedent’s estate (Taylor v. Brooks, 4 Dev. & B. L. [N. C.] 139).

Class 2. This book shotild be delivered to the petitioners. It was the property of their intestate personally, and the bank is now responsible to her representatives for whatever balance may have been due her at her death (Lawrence v. Fox, 20 N. Y. 268).

Class 3. This book also should be surrendered to the petitioners. Michael and Mary were joint depositors, and upon the death of the former the right of action against the bank vested in the survivor. She was entitled in her lifetime, and her representatives are now entitled to hold the security and proceeds, and to the extent of Michael Smith’s interest in that account his widow’s representatives will hold them as trustees of all persons interested in his estate (Blake v. Sanborn, 8 Gray, 154; Mulcahey v. Emigrant Industrial Savings Bank, 89 N. Y. 435).

Classes 4 and 5. The disposition of the book which stands in the name of “Michael A. and Mary Smith, either to draw,” must also be governed by the decision of the Court of Appeals in the case last cited. The bank seems to have agreed to pay to either depositor on the production of the pass-book. The present representative of Michael has the same right to draw upon the funds here in dispute as both he himself and his wife could have exercised while both were living— the same right that vested in the survivor after her husband’s decease, and the same that the petitioners, as representatives of the survivor, are now possessed of.

In view of this apparent equality of ownership and of right of possession, I shall not direct the transfer of this book from the public administrator to the petitioners ; nor should I, if it were now in the hands of the petitioners, and the public administrator sought to procure its surrender, grant the relief asked.

The decree which in this class of cases the0 surrogate is empowered to make by section 2712 of the Code is only warranted when, as a result of examination, “it appears that there is reason to expect that money or other property of the decedent is withheld or concealed by the person cited.”

It was declared by the Supreme Court of this department in Matter of Curry (25 Hun, 321), that “ the surrogate can only decree that possession be delivered to the representative of the deceased party where it clearly appears that such possession is wrongfully withheld.” , . . “It was by no means the intention of the statute,” said Davis P. J., “ to go farther than to rescue the property clearly belonging to the estate of the decedent from a party not lawfully entitled to withhold it.”

I must, therefore, deny this application so far as it relates to the pass-book which is in the name of “ Michael A. and Mary Smith, either to draw,” and to the one which is in the name of “Michael A. Smith or wife, Mary.” I see no difference in principle between the two cases last considered.

Decree accordingly.  