
    William Jagger, v. John H. Bird, as Ex’r.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1886.)
    
    1. Equitable Conversion.
    The defendant’s testator and her brother, with another person, owning an undivided half, were tenants in common of a mill, upon the destruction of which by Are, insurance money was collected and deposited by the parties in a savings Lank. The share belonging to defendant’s testator and her broilier was subject to the life interest of their father. By will, the defendant’s testator gave her share in the mill to her brother. Ilelcl, that it was within the power of the owner to convert the insurance money into personal property, even if it were real property, after it was received from the insurance company.
    2. Same—What furnishes presumption op.
    
      Held, that the deposit of money and the length of time during which it remained on deposit, furnished a presumption that the parties intended to do so.
    3. Joint ownership.
    
      Held,, that as between the children, the deposit was one of joint ownership, and that after the father gave up the insurance money to them he had nothing more than an equitable right against them for interest on the money received.
    
      B. K. Payne, for appl’t; George F. Canfield, for resp’t.
   Barnard, P. J.

At the time of the death of Mary Green there stood on deposit in the Riverhead Savings Bank to the credit of her brother and herself the money in question “subject to draft by both.”

The deposit was the amount of a fire loss upon a policy of insurance upon an old mill which was owned by the parties in common with one Luce, who owned an undivided one-half.

The half of Mary Green and her brother was subject to the life estate of their father therein, who was, at the time of the fire, over eighty years of age. The parties did not rebuild or replace the mill, but deposited the money in the savings bank in the manner stated.

The deposit was made with the assent of the father. The father died and the brother of Mary Green, William, is his executor. After the deposit had remained in the bank some four years Mary Green died, and she is represented by the defendant Bird. By her will she gave her interest in the old mill to her brother. It was within the power of the owners to convert the insurance money into personal property, even if it was real property, after it was received of the insurance company. Presumptively they did this from the manner of deposit, and from the length of time the deposit remained untouched. This accords with the surrounding circumstances. The mill was old, and' the life-tenant was very old, and it appears that he consented to look to his children rather than to conduct the mill. The other owner had taken his share of the insurance, and he appears to have not intended to rebuild. The finding of the trial judge that the deposit was personal property is fully sustained by the evidence.

The father, after he gave up the insurance money to his children, had nothing more than an equitable right against his children for the interest on the money received.

He had no interest in the deposit in the absence of fraud. As between the children the deposit was one of joint ownership. Martin v. Funk, 75 N. Y., 142; Willis v. Smith, 91 id., 298.

It was a joint ownership of the deposit as personal property. Hastings v. West. Fire Ins. Co., 73 N. Y., 141.

The judgment should be affirmed, with costs.

Pratt, J.

The deposit of the fund in the savings bank in the joint names of the plaintiff and Mrs Green, raises the presumption that it belongs to them in equal shares.

We find no evidence to repeal this presumption, and believe, with the judge at special term, that the owner of the life estate waived his claim in favor of the heirs.

Nor do we find any evidence that the heirs regarded the fmid in bank as in any way different from other personal property owned by them. No decision quoted goes so far as to hold that a policy of insurance will continue in favor of the heir, unless expressly made for his benefit. And if he could not claim under a policy issued to his ancestor, still less can he as heir claim the fund where the ancestor collected the indemnity.

The cause was correctly decided, and judgment must be affirmed, with costs. _  