
    Matter of the Estate of James Finn, Deceased.
    
      (Surrogate’s Court, New York County,
    
    
      August, 1904.)
    Savings Bank Accounts—An Account “James Finn in Trust fob Mart Finn ” Belonging to Mart Finn—An Account “ James Finn or Mart Finn”—What Proof Establishes Title in Mart Finn— a Subrogate Mat Not Decide, as Between an Administratrix, as an Individual, and a Third Person, an Issue as to the Title to Propertt.
    Mary Finn, whose name prior to her marriage to James Finn was Mary Myers, was on his death appointed administratrix of his estate, and thereafter withdrew moneys from savings bank accounts standing in the following names: “James Finn, in trust for Mary Finn, his wife;” “James Finn, in trust for Mary Finn,” and “James Finn or Mary Finn,” the latter account consisting of moneys transferred from an account which had formerly stood in the name of “James Finn, in trust for Mary Myers.”
    
      
      Held, that the money so withdrawn, did not belong to the decedent, and that the widow could not, as administratrix, be charged therewith.
    A surrogate has no jurisdiction, in proceedings for the judicial settlement of accounts of an administratrix, to pass upon an issue of title to property arising between the administratrix, as an individual, and third parties, when neither party alleges that the part in dispute forms part of the estate to be administered, but both insist that the decedent parted with title thereto prior to his death.
    Explained, 49 Misc. 193.
    Proceedings upon the judicial settlement of the accounts of an administratrix.
    Joseph I. Green, for petitioner; New & Gilchrist, for contestants.
   Thomas, S.

—I will find as a matter of fact that the administratrix was the lawful wife of the decedent, and that she is now his widow, and that her former husband died prior.to her marriage with the decedent. The account of the administratrix cannot be surcharged with the sum of $3,154.38 drawn by her from the account in the Bowery Savings Bank in the name of James Finn, in trust for Mary Finn, his wife,” or with the sum of $1,097, drawn by her from the account in the Seamen’s Bank for Savings in the name of “ James Finn, in trust for Mary Finn,” for the reason that those sums were presumptively her property (Matter of Mueller, 15 App. Div. 67; Robertson v. McCarty, 54 App. Div. 103). Eeither can she be charged with the sum of $819’ drawn from the Metropolitan Savings Bank, being the balance due on an account opened in the name of James Finn or Mary Finn.” It affirmatively appeared that this account was opened on July 3‘, 1901, by a deposit of $1,455.28, which was transferred from a former account in the same bank in the name of “ James Finn, in trust for Mary Myers.” The name of the administratrix before her marriage to the decedent was Mary Myers, and the moneys so transferred belonged to her under the authorities above cited. The .subsequent drafts from that account exceeded the deposits,, and the balance at the time of the decedent’s death was $819 only. On these facts and on the authority of Mulcahey v. Emigrant Industrial Savings Bank (89 N. Y. 136), I must determine that this balance did not belong to the decedent.

The suggestion on the argument that the decedent was liable as the general guardian of one of his sons for property in his hands as such guardian raises no question that could be passed upon in this proceeding, even if a formal objection had been permitted to. be filed upon that ground. The claim, based upon the argument that some of the money collected by the widow was the property of certain of the children by reason of trust? deposits made by the decedent years before his death, is not made by the objections filed. It could not be considered here even upon due objections, because a surrogate has no jurisdiction to pass upon an issue of title to property between an administrator as an individual and third parties, when neither party alleges that the property in dispute forms part of the estate to be administered, but both insist that the decedent parted with title thereto prior to his death. The claim of the administratrix as an individual in resisting the claim that the property received by her is part of the estate to be distributed may be determined under section 2731, Code Oivil Procedure. The account will be approved as filed. ISTo costs will be awarded to either party.

Decreed accordingly.  