
    Rollin B. Wood, as Executor, etc., of Frederick Weitz, Deceased, Appellant, v. Catherine Zornstorff, Respondent.
    
      Sank deposit — question of ownership thereof between a father {since deceased) in whose name it originally stood and his daughter whose name had. been added to that of the father —1 under what circumstances a question for the jury.
    
    In an action brought by an executor against the daughter of his testator to recover the amount of a bank deposit standing in the joint names of the testator and the defendant, which was withdrawn by the latter three days after ¡the ■testator’s death, it appeared that the account originally stood in the testator’s name and that at least a part of the moneys deposited therein belonged to the ■ testator; that the defendant kept the pass book and that the testator, who ■ was a man advanced in years, repeatedly requested her to bring it to him, which she invariably promised to do; that she never made any suggestion that the deposit' was her property or that the survivor was entitled to it, nor did she ever dispute the testator’s right to the pass book. It also appeared that the testator by his will disposed of a considerable amount in general legacies smd made the defendant his residuary legatee and that the bank account was the only property upon which the will could operate.
    
      Seld, that the evidence required the submission to the jury of the question of ownership of the deposit, and that it was error for the court to direct a verdict in the defendant’s favor.
    
      Appeal by the plaintiff, Rollin B. Wood, as executor, etc., of Frederick Weitz, deceased, from a judgment of the County Court of Monroe county in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 24th day of May, 1900, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 24th dry of May, 1900, denying the plaintiff’s motion for a new- trial made upon the minutes.
    
      Pomeroy P. Dickinson, for the appellant.
    
      William A. Sutherland, for the respondent.
   Spring, J.:

November 17, 1890, Frederick Weitz had on deposit in the Rochester Savings Bank $185.85. On that day the account was transferred to Frederick Weitz and Catherine Zornstorff, the defendant in this action, and the usual pass book showed the account in that form. The account was continued in this manner and additions were made to it until the entire sum, amounting to $1,538.50, was withdrawn by the defendant January 7, 1899, three days after the ■death of her father. The pass book during this period was retained by the defendant, but it does not appear with any satisfactory clearness who was responsible for the deposits made from time to time. Mr. Weitz was an old man who moved about with difficulty, and in 1889 he had conveyed his farm to his two sons who at first paid him ■a monthly allowance of $12.50, and also supported, clothed and maintained him. later during that year, in compromise of an action pending between the father and his sons, this agreement was modified by providing for the payment to the old gentleman of $300 in three equal annual payments in addition to his • monthly stipend.

He was evidently a thrifty, economical man, and it is not a violent inference to entertain that out of these moneys he added to the bank account, as the deposits were strung along during this entire period, in small sums. It can be urged with some plausibility that the account itself confirms the claim that these deposits were made by the father. In November, 1897, he made his last will and testament disposing of $850 in general legacies and making the defendant his residuary legatee. It does not appear that he was the owner of any considerable property unless this bank account ■ represented his savings, and it can be claimed that his motive in drawing his will was to dispose of that fund. Beyond the inferences which might be drawn from these facts and circumstances there was direct-proof óf more or .less cogency.

Several witnesses testified that the old gentleman repeatedly-asked the defendant for his pass book, and she promised that she would bring it to him. She lived seven or eight miles from her father, and occasionally at his instance relatives called at her house informing her that her father wanted his pass book, and she invariably promised to take it to him. When she came to visit him once he said : I want my bank book and I want to have my money and look after my money,” and she replied, “ I will bring it some time or other.” At another time when she came without it he said toiler : “ Rather curious; a person who has money in the bank and can’t get a hold of his book and see whatever is going on with it.”' In these conversations, so far as the proof shows, there was no suggestion by • her that- the moneys in the bank were her property or that the survivor was to take them, nor did she dispute his right to-the bank book.

While these facts do not conclusively establish the fact that the. father owned or was interested in the deposits, they may warrant inferences, unexplained as they are now, which would justify a. jury in finding the moneys, at least, did not wholly- belong' to the defendant.

While the bank book during -this period was in the name. of the father and daughter, it does not necessarily follow from that fact that she was to receive the whole sum upon his death.. The intention of the parties in making this transfer to the two and in keeping it in that form is what must control the solution of this action. (DePuy v. Stevens, 37 App. Div. 289, 294; Matter of Bolin, 136 N. Y. 177.)

It may have been placed in the names of the two either to assure title in the survivor or as a matter of convenience for this father in his advanced years to enable his daughter to transact the business, for him, and it is for thé jury, taking into consideration their relations and all the facts and circumstances, with -the deductions to be properly drawn therefrom, to determine where the truth 'lies.

The judgment and order should be reversed; with costs to the ■appellant to abide the event.

All concurred.

Judgment of County Court reversed upon the facts and new trial •ordered, with costs to the appellant to abide event.  