
    In the Matter of the Judicial Settlement of the Account of Catharina Kaupper, as Administratrix, etc., of Lorenz Kaupper, Deceased. Erhart Hoffman, as Executor, etc., of Lorenz Kaupper, Deceased, and Mary Klingenberg, Appellants; Annie Paulson, Individually and as Administratrix, etc., of Catharina Kaupper, Deceased, Respondent.
    Second Department,
    November 18, 1910.
    Mortgage — purchase-money mortgage in ñame of husband and wife — joint tenancy with right of survivorship established by parol—banks — savings bank account in name of husband and wife — survivorship —Statute of Frauds — writingnotnecessary to creation of joint tenancy in- personal property.
    Where a husband conveyed to his wife an undivided' one-half part of lands owned by him in "consideration of- a release of her dower to him,"it-will be • presumed that the parties intended to create a tenancy in. common, '
    Where a husband and wife conveyed as tenants in' common and accepted a pur- . chase-money mortgage payable to both, they may be adjudged to have held the mortgage jointly with a right of survivorship if such-intention .on their part is, established by undisputed evidence.
    Although the law does not recognize a tenancy by the entirety in.personal prop-, erty, it does recognizé a j oint tenancy in such property with fight of survivorship when created'by the parties whether or no they be husband an'd wife.’
    
      Where an account in a savings bank is eútitled “ Catharina or Lorenz Kaupper,’’ they being husband and wife, and there is no evidence as to whom the money belonged, a joint tenancy with right of survivorship may be found on evidence that on the opening of the account the husband and wife stated to the tiller that they wished to open, an account in both'names and that on the death of either the survivor was to draw the balance.
    Although by virtue of the Real Property Law every estate granted to- two or more persons in their own right shall be a tenancy in common unless expressly declared in writing to be a joint tenancy and although the rules governing estates in lands should, so far as practicable, be applied to like estates in personal property, a joint- tenancy in a mortgage standing in the names' of husband and wife may be established by parol evidence of their intent to hold as such.
    Thomas, J., dissented, in part,"with opinion.
    Appeal by Erhart Hoffman, as executor, etc., and another, from a decree of the Surrogate’s Court of tire county of Kings, entered in said Surrogate’s Court on the 13th day of July* 1909, overruling objections to the account of the respondent.
    
      Charles. Coleman Miller, for the appellants.
    
      Adolph Kiendl \James E. Smyth with him on the brief], for the respondent.
   Burr, J.:

In 1892 one Lorenz Kaupper purchased a farm, taking title in his own name. In October of the same year he conveyed to his wife, Catharina Kaupper, an undivided one-half part thereof, and on the same day she executed and delivered to him a release of her dower. Without determining the legal effect of this release,. I think it is apparent that the intent of the parties was to create a tenancy in common in the land. In 19.07 Kaupper and his wife conveyed the farm to Abraham Balinky, and took back a bond of the said Balinky, payable to Lorenz Kaupper and Catharina Kaupper, his wife, their executors, administrators or assigns. This bond was secured by a purchase-money mortgage upon the premises.

It appears from the testimony of the attorney, who represented the parties at the time of the sale, that a discussion arose respecting the person in whose name the mortgage should be taken. He testified : “ Mrs. Kaupper wanted the title to the mortgage ; she asked to have the title put in her name, and there was some talk about it on account of the-"age1 of the ok! man ;he was -a very-old man. The old man said that he wanted [it] in both names so that one would receive. it ■ in case, of the death of the other; that he might ■die leaving -her $ L .think he said he, expected • not. to.- outlive,,¡her because he was about ten years older than she was.” This testimony was absolutely uncoil trad ie l: ed, and' was confirmed by that of two other witnesses. , One of them .testified that the old man skid that “ in .case he died she was to get. it, and in .ease .she, died he would,get it;” and that-Mrs. Eaupper expressed herself as; being , satisfied with "this. On September 25, 1906, an account was opened in-t-he-East ¡New York Savings Bank, entitled. “ East. New York Savings Bknk to Lorenz or Catharina Eaupper,”- and on the lith of February, T907, another.account was opened-in the" same-bank, entitled “East ¡New Yolk ¡Savings Bank " to: Oatharina -or 1 Lorénz1 Eaupper.”, There is1'no evidence to whom- the-money'belonged,that'was-thus .deposited. The teller Of the hank- testified’that Eaupper-andihis. wife came to the bank together and at' the. time" of opening the accounts stated that. “ they wished to open an account in both names, ¡and in case bf the death of either one the survivor to draw the balance of the money.” This- testimony also is uncontradicted. Lorenz Eaupper died July 6, 1908. At the time of his death the entire principal sum of the bond and mortgage was unpaid, and" there Was to the credit of one of the"-savings ■bank'accounts'the sum of $3,104:06, and. to the credit"of " the other the Slim bf $3,108.60.' 'Letters of administration--upon ' Lorenz Eauppcr’s" estate wéré" issued to his- wife"on July 29, 1908, Subsequently' a will was discovered, executed by him on February 18,1895,' which" wag proved1 March 22, 1909: This will, contained no provision" for "his "Wife" except the following': “Fifth. To my wife Catharina Eaupper 1 bequeath the sum of fine dollar, she having previously received "from me a conveyance of ."certain lands in lien' of her dower.” Shbsequéhtly to' the‘probate1 of the-will "these proceedings were started, requiring " the said Catharina Eatipper; as administratrix, to" account tó the "exétíutbrs named in said will,1 who . had" dhly" qualified',' : She " filed' such account,1 and15 objections: were filed upon the ground that she had.not .charged herself with ono-haif of : the Said bond and "mortgage and bn e-half of" the savings bank accounts. ; She ‘ claimed'tb ".'bé'thé" ‘óvtiier ‘of" tlie1 Whole'; thereof1 'as1 téurvivór' of her husband. The objections were overruled, and the Surrogate’s Court in Eings county made its decree, holding in effect that as such survivor she did become absolute owner of the whole of the said property. Pending, this appeal Catharilia Eaupper died, and the proceedings were continued in the name of her administratrix.

I think that'the surrogate’s decree should be affirmed. Conceding that the law does not recognize such a thing as tenancy by the entirety in personal property (Matter of Albrecht, 136 N. Y. 91, 94), it still does recognize a joint tenancy in personal property, which may be created if the parties so intend, irrespective of whether the tenants be husband and wife, and in such case the right of survivorship does exist. (West v. McCullough, 123 App. Div. 846; affd., 194 N. Y. 518.) In the absence of direct evidence as to the intent, the law deals with presumptions. It has been held that if the husband and wife eacli contrib.ute. to a joint investment, or to the purchase of a security, and the title is taken in their joint names to be held by them, their -executors,'administrators or assigns, no presumption arises from the nature of the act that either intended to make a gift of his or her share to the survivor, and they would hold the same as tenants in common. (Matter of Albrecht, supra.) On the other hand, where a husband purchases with his own funds personal property, taking the title thereto in the joint name of hinrself and his wife, or makes a deposit in the savings bank of his own funds in their joint names, in the absence of other evidence the presumption will be that he intended to confer upon his wife tl'ieriglit of survivorship. (West v. McCullough, supra; Platt v. Grubb, 41 Hun, 447; McElroy v. Albany Savings Bank, 8 App. Div. 46; McElroy v. Nat. Savings Bank, Id. 192; Matter of Meehan, 59 id. 156.) Where it does not appear to whom the money belonged when it was placed in the bank, or who placed it there, although the bankbook may be in the joint name of husband . and wife; in the absence of other evidence of intent the presump- ' tión will obtain that each had an equal interest therein. (Wetherow v. Lord, 41 App. Div. 413.) In view of the. fact that the -real property; which was sold at the -time that the bond and purchase-money-mortgage 'Were taken, was held -under circumstances which would justify a conclusion that the "husband and wife owned' it as tenants in common, in the absence of other .evidence it might be presumed that it was the intent that the securities should be held in the same ' way. But this presumption cannot prevail if there is uncontra-. dieted testimony of disinterested witnesses as to declarations by both ■ parties, each in the presence of the other,made at the time that the bond and mortgage were executed, that the intent was, to create a-joint tenancy with a right of' survivorship. The same rule would apply to the savings bank accounts. Although- this- evidence was received without objection, the contention is made that because of the statute relative to estates in land, the learned surrogate erred in holding that any right of survivorship existed. If I understand the . argument correctly, it-is this': The statute relating to real property declares: “Every estate, granted or devised.to two or more persons in their own right, shall be a tenancy in common, unless 'expressly declared to be in joint tenancy.” (Real Prop. Law [Laws of 1896, chap. 547], § 56.) “ The rules governing estates or. interests in lands, • whether founded upon statute’s or upon general principles of daw, should^ as: -far as practicable, be applied to estates • or interests of1 a like character in personal property.” (Mills v. Husson, 140 N. Y. 99; Matter of Kimberly, 150 id. 90.) The. express declaration referred to in the statute must be. contained , in the writing under which the parties derived their.rights to the property in question, or in an associated writing. In the absénce of . such express decíaration, parol evidence as to intent, even -though received without objection, would be ineffective as. against the requirement of the statute. . -

This contention seems to me to be unfounded; The statute by its terms is limited to real property; So far as the nature of the tenure, of an estate in personal property is concerned, it may be conceded that the statutory rule here expressed is applicable also to personal property. (Mills v. Husson, supra.) It may be that in the case of1 real property the statutory .presumption that grantees hold as tenants in common “ is only removed by an express declaration. that they take as- joint tenants, or by words from which it, clearly appears that.there is an intention to create a joint tenancy,” and 'that “ This intention can only be gathered from the expression used in the devise [or grant], and must be a -necessary. implication from it.”. (Gage v. Gage, 43 Hun, 501; affd., 112 N. Y. 667; Jooss v. Fey, 129 id. 17; Miner v. Brown, 133 id. 308.) But in the case of real property, “ an estate or interest ” therein, “ other than a lease for a term not exceeding one year, or any trust or power, over or concerning real property, or in any manner relating thereto, can not be created, granted, assigned, surrendered or declared, unless by act dr operation of law, or by a deed or conveyance in writing, subscribed by the person creating, granting, assigning, surrenderi/ng or declaring the same, or by his lawful agent, thereunto authorized by writing.” (Real Prop. Law [Laws of 1896, chap. 547], ,§ 207.) ' So the Statute of Wills makes necessary (with an exception not here important to be noticed) a written' instrument subscribed and attested with certain formalities. (2 R. S. 63, § 40.) But in the case of personal, property no instrument in writing is necessary to transfer the title thereto or to create an estate therein, and it would seem unreasonable to insist that, although the title might be transferred and the estate created by parol, evidence as to the character of that estate, and that it was a joint tenancy and not a tenancy in common, must be reduced to writing. Suppose that a husband and wife ■ desire to purchase a horse, -taking title thereto in the names of both. Payment of the purchase money and delivery of possession would transfer such title without any written instrument. It may be conceded that in the. absence of evidence of a contrary intent, if each contributed one-half of the purchase price, they would own the horse as tenants in common. Can it be possible that if they desired to own it as joint tenants, with a right-of survivorship, their express declaration of this could not be established by satisfactory parol evidence, but must be reduced to writing ? Although to create a valid trust in real property, other than one by operation of law, a writing is necessary, so far as personal property is concerned it is not necessary that there should be an explicit declaration of trust in writing. If the evidence of attending circumstances discloses that a trust has been. created, and its purpose and object, it is sufficient. (Devoe v. Lutz, 133 App. Div. 356; Beaver v. Berner, 117 N. Y. 421; Young v. Young, 80 id. 422; Martin v. Funk, 75 id. 134.) Why should it be necessary in the case of a purchase of personal property to declare in writing the nature o± the tenure thereof? The rule by analogy referred to by Judge O’Brien in Mills v. Husson (supra) is only “ as far as practicable.”

So far as the character of the property is concerned there is no difference between the- savings bank .accounts and .the: bond, and, mortgage; “ Since-the adoption-of the Ee vised Statutes it has been - .the law of this State that a mortgagee acquires no title to the morh-,. gaged property ".'that the mortgage is simply- a, chose in. ¡action-,, .held: as1 collateral security for the-payment of a, debt,,and until fore»..' closure the mortgagor lias the. entire fee subject to -the- lien of the mortgage.'-' Herd: the bond is the-principal obligation, ¡and the-, rights of the joint-creditors as between- themselves, upon the; collec-. tión of the'debt are not affected by -the -existence, of the mortgage-. as collateral security for its 'payment.” (Matter of Albrecht, supra.) Tire fáct;-that at the time -Lorenz Kaupper -made.his will in-: 189'5; twelve years-before the making-of the bond and mortgage , and eleven year's1 bfe-foio-the Opéning -of- the-.savings hank accounts,, lie left Ms1 wife'-nothing by tliat iiistvument, stating.-as his -reason.. therefor that he. had 'already- conveyed to -her' certain lands in lieu, of. dbXvér, does not hecessarily-conflict:with-his-subsequent -expressed' declaration'of intention-that as to-both the bond-and the., mortgage i and'the savings bank accounts slie should become -the,.sole, owner thereof if'she'-survived him. In the long--period of-'time which-had elajised -there w-as- ample-opportunity.for him to change his mind as'to the extent in-Which-.she should participate- in- Ms property, and she does1 not claim- these- finder-iiis-wilL \ At the most, -it. caii only be said that this - was-a circumstance bearing, upon-the, question- of intent.- The - preponderance of evidence that lie-' intended that his wife should take both tlie: bond and mortgage and the savings -batik -accounts as survivor -is so -overwhelming;,that -the surrogate-would not have-been justified in-finding otherwise.. ..

"The decree of the Surrogate’s Court-of. Kings- county, should be-affirmed,'with costs. p ;■ . ;

Hirschbero,' P. J.,,. "WoodWard and Jeotcs,- JJ., concurred;" Thomas, J., read for modification. ' .

Thomas, J';:

• Husband and wife as tenants in common owned land, which they sold;'receiving1 therefor a bond and.mortgagé.payable to them., They took and lield the •securities as tenants,in -common,by virtue of section.. 56 of'tlie’Eeal Property Law, undoubtedly applicable to personal property.1 (Mills v. Husson, 140 N. Y. 99, 104; Matter of Kimberly, 150 id. 90.) But it is urged that the quality of the estate created by . the instruments was changed by contemporaneous parol agreement from a distinct ownership in the property to a joint ownership; that is, tliat one tenant in common by the evidence of by-listeners has legally shown that, when the instruments payable to the two as tenants in common were' delivered, the parties agreed that the instruments should convey property interests to be jointly owned during the life of both and then accruing in ownership to the survivor. So writings promising to pay to two persons holding by distinct titles, and between whom the only unity is that of possession (1 Waslih. Beal Prop. 685) become writings payable to the two jointly, and so to the survivor. In this way the statute is set at naught, and an estate not favored by our law arises in derogation of the written instrument, although the statute declares that this shall not happen unless there is an express declaration. This means “ expressly declared” by the instrument itself or some paper properly read in connection with it. In the ease of a writing it cannot intend antecedent or contemporaneous parol declarations made by 'the parties that the interests transferred shall be in the nature of a joint tenancy, nor by similar declaration made by the two. This is said because the statute is defining the quality of an estate “granted or devised,” and must have reference, in time to its inception and whatever instrument creates it. The mortgagor in effect says, “I for security pledge my land to A and B, and empower them to convey or to cause the title to. be conveyed according to law upon breach of the condition.” Bow the bystander says, after ope holder has died, that when that was done, A said, B expressing herself as satisfied, or A and B expressly declared, “We will not have this instrument do-wliat it purports; that is, give each by distinct title a share in the enjoyment, but will diminish the ownership of the one first dying to a life estate and enlarge that of the survivor to ownership, in severalty, with common enjoyment for their joint lives,” and this court is asked to hold that such conversation or declaration changed the instruments accordingly. So every mortgage to two or more by parol may be proven to. run to the survivor ; any will giving,a legacy to two or more may be changed by parol from a tenancy in common to something different in ownership. So words spoken fritter away words ■ solemnly written and ■ carrying"a meaning declared by the statute, and the, recollections of hearers, by chance or otherwise, dissipate property interests' vested by a writing. .It cannot be. too carefully observed that “this is not a. ' question of a person by. parol giving or selling his property. A person may place his property in a bank, and ,say, “ This is in trust for A and B, and if the depositor die leaving the trust unrevoked and the- property unconsumed by himself, B may take it.” But if he deposit the money and declare in writing that it is in' trust .for A and B, A’s witnesses after B’s death, shall not be heard to say that A and B stipulated that the legal effect of the trust was at its inception so changed as to give the estáte for their joint enjoyment for their joint-lives, and that the- survivin' should take the whole. The question under primary ' consideration is nbt how one person owning personal .property ■ can transfer it to another, nor whether chattels can be sold by parol and delivered, nor whether a man and" wife, having purchased a horse as tenants in common, can by parol create a joint estate in it, but whether a written instrument that gives A distinct title'to an interest in per-' ’ sonal pro'pérty and B a similar distinct title in interest may itself be changed by parol so as to give an entirely different interest by a joint' title. If notes or bonds be made payable to A or B, or stock be transferred, to A and B, can B. show that the property interest was carried by this instrument to the survivor because the payees or the transferees at the time, of taking the securities said, one to another that such should be the case? JSTo instrument relating to personal property could under such á rule escape destruction of its inherent quality, force, meaning and- intention. ' Could A, at the time of the execution of the instrument and independ- ' ently thereof, give or. sell his interest tó B ? He could. ' That is quite another proposition, and if that be the claim -it should be. clearly proffered and .receive separate consideration. But the first question is whether the quality of an" estate in personal property • particularized by the instrument can be changed at its vesting to a ' different' quality by evidence of parol declarations of the tenants, so that the instrument creates a -joint'tenancy rather than a tenancy in common. The fact that the owners were husband and wife does, not aid the contention. Where there is an instrument carrying interests to husband and wife, and the. wife has no property interest otherwise, the courts have held that it must have been the intention to create a joint tenancy, and this is to account for the wife’s presence as a party to the instrument. But if the wife is a part owner in her own right no occasion for such interpretation arises, and so it was held in Matter of Albrecht (136 N. Y. 91). But either party could give his interest to the other, not by changing the legal effect of the instrument that carried the property interest to the two as tenants in common, but by recognizing that each held as a tenant in common and by making a new and distinct arrangement, whereby one gives in whole or in part, absolutely or conditionally, whatever he owns to the other. But is there evidence in the case at bar that the husband made an independent valid gift to his wife, or that the wife made such gift to the husband; that is, that each made a valid gift that his or her interest at death should become the property of the survivor ? Was it a gift inter vivos f Every element of such gift is wanting. It neither went into effect at once nor was there any delivery of the subject of the gift. Such elements are negatived by the essential terms of the alleged agreement that each party should keep his interest in enjoyment until one died. Was it a gift causa mortis f Here the difficulty of delivery to the donee at once arises. But passing that, there is no pretense that the gift was made in reasonable belief nor in anticipation of the view of approaching death. So the theory of a gift may be disre- . garded. Was there a contract by which they agreed that there should be a joint tenancy, that is, that each sold to the other one undivided half interest in the property conditioned upon survivorship ? There is some evidence that before the instruments were drawn the husband stated that he wanted the instrument drawn to both of them, and that .he wished the survivor to have the property, and that the wife expressed herself as being satisfied. Then the instruments were drawn in such a way as to negative such conversation and to givé to the husband and wife each an estate of an entirely different quality. The husband said, with the wife’s assent, that he wanted it in both names, so that one would receive it in case of1 the death of the other, and then and there an expert and honorable lawyer • drew it, so that by the terms of the instrument one would not receive it in case of the death of the other.. But it is said that a parol • declaration made before the execution of the instrument is the ■ express declaration of joint tenancy contemplated by the statute. That is,, one of two'persons acquiring separate interests in the same , • thing may lose it to the other by evidence of an antecedent conversation ,by p.arol that dispute's the instrument. Such conversation, if it be regarded as an. agreement, carries one person’s title in personal property to .another, conditioned, upon the vendee being the survivor., How, if we look for a consideration for such; á' contract, there , is none, except the .mutual, promises, "but there is no payment and no delivery and.no writing, except a writing that raises the presumption that no such property interest exists as that claimed through the parol agreement. So I find no,principle of law that permits .one tenant in common of .property to tender evidence that an ■instrument .that the law..gays carries distinct title to. each, of .the-two persons with a. common' possession did no such thing, but carried joint.title and common enjoyment to both living, and to the sur- - vivor, or that a gift or sale was made by each to the other, conditioned upon survivorship, and taking effect at the death of one of - :them.. Hence-this judgment should be modified so as to-vest the title to the husband’s, one-half interest in his executor,. and as so modified affirmed, without costs., -

Decree of the Surrogate’s Court of Kings county affirmed, "with costs. ' • . ■ ' "  