
    In the Matter of the Judicial Settlement of the Account of John George Baum, as Administrator, etc., of Fredericka Baum, Deceased, Appellant. Caroline Breul and Others, Respondents.
    Second Department,
    October 4, 1907.
    Mortgage— husband and wife -- no tenancy by entirety.
    -When husband and wife, being tenants by the entirety, convey lands and take back a purchase-money mortgage payable to both, the survivor is not entitled to the whole proceeds of the mortgage.
    As a mortgage is personal property, the rule as to tenancy by the. entirety does not apply; to.create a survivorship there must be an agreement to that' effect, or a gift cama mortis. -,'
    Appeal by John George Baum, as administrator, etc., from certain parts of a decree of the Surrogate’s Court of the county of Queens, entered in said Surrogate’s Court on .the 26th day of November, 1906, settling his accounts as administrator.
    
      Leander B. Faber [Charles H. Street with him on the brief], for the'appellant.
    
      James J. Conway, for the respondent Bieul.
    
      Henry D. Merchant for the respondents Durkel and Fortcher.
   Gaynor, J.:

This appellant and his wife owned a piece óf real estate as tenants by the- entirety.. They conveyed it, and took back a purchase-money bond and mortgage made payable to both of them for part of the purchase money. He owned another piece of real estate, conveyed it, she joining, and took back a like'purchase money bond and mortgage made payable in the same way. She afterwards died and lie is-her administrator. The surrogate has charged him. as such administrator with one-lialf of the proceeds of the said bonds and mortgages, they having been paid since the wife’s death. He claims that he is entitled to the whole of such proceeds as survivor, and appeals. The law of ownership or tenancy by the entirety does not apply to personal property. To enable the husband to take the whole by survivorship there would therefore have to be an agreement to that effect, or a gift causa mortis, and there is neither here. That one of the pieces of land was owned by the husband and wife as tenants by the entirety does not make a different case. When it was sold such tenancy "was ended (Matter of Albrecht, 136 N. Y. 91).

The decree of the surrogate should be affirmed.

Hirsohbero, P. J., Woodward, Jenks . and Midler, <TJ., concurred.

Decree of the Surrogate’s Court of Queens county in so far as appealed from affirmed, with costs payable out of the fund.  