#### In the estate of John A. Brooks, deceased.

*(Surrogate's Court of New York County,*

*Filed December*10, 1886).

1. Executors and administrators — Accounting — Joint deposit bt HUSBAND AND WIFE — WHAT DEEMED ASSETS.

Upon a reference in an accounting by the administratrix the wife of the deceased, it appeared that a sum on deposit in a bank to the joint credit of the deceased and wife, had been withdrawn by her as administratrix, and that one-half of the amount (less the sum to which she was entitled by law), was included in her inventory, an exception being taken to the ruling of the referee holding the wife chargeable with only one-half of the amount deposited, it was *held*that the deposit being to the joint credit of the husband and wife, upon the decease of the husband it became the property of the wife.

2. Same — Moneys received from benefit associations.

The disposition of moneys paid at a decedent’s death by benefit associa tions whereof he was a member, must be determined entirely by the constitution and by-laws of such associations, and such moneys are not assets of the decedent’s estate.

3. Same — Funeral expenses — Reimbursement.

The administratrix having paid the funeral expenses of the, deceased, and having subsequently received sums as funeral benefits ” and “ funeral expenses ” from benefil associations of which deceased was a member, is not entitled to credit on account of the payments made, she must be considered as reimbursed by the sums received.

*Robert 0.*Byrne, Att’y for administratrix; P. *0. Belcerson,*Att’y for Christopher Brooks *et al.,*contestants.

*382Rollins, S.

To tbe account filed by this administratrix in December, 1885, certain objections were interposed by three adult children of the decedent, and by the special guardian of two infants interested in his estate. The issues thus raised were submitted to a Referee ; whose report is before me. I pass upon the various exceptions to his findings and conclusions as follows:

*First.*It appears that at the time of decedent’s death, there was in the hands of the Hudson City Savings Institution to the joint credit of himself and his wife, now his widow and administratrix of his estate, the sum of $1,929,04, and that the widow as such administratrix subsequently withdrew those moneys from their place of deposit. It further appears that one half of such moneys, (less the sum of $150. set apart pursuant to law, for the widow’s benefit) was included in an inventory filed by her as administratrix and was appraised as assets of her husband’s estate.

The Referee has found this deposit of $1,929,04, to be “the joint property of the estate of John A. Brooks and of Eliza A. Brooks” (the widow), and has held that “in the absence of any evidence as to the respective proportions of each, the administratrix is chargeable with only one-half of the amount of such deposit.” It is insisted by the exceptions that she is chargeable with the whole.

Under the circumstances disclosed by the evidence, it seems to me that if the Referee has erred at all in this matter, he has erred in favor of the contestants. Surrogate Bradeobd *held*in *Rom. Cath. Orphan Asylum*v. *Strain*(2 Bradf. 37), that a deposit of moneys in the joint name of husband and wife with the privity of the husband must be taken as *prima facie*a gift of such moneys to the wife in the event of her surviving her husband, and that where such deposit had been left undisturbed by the husband, the money became on his decease the property of his wife.

The doctrine of the case just cited was recently asseverated by the Supreme Court of the Second Department, in *Platt*v. Grubb, 1 State Rep., 494. The moneys on joint deposit which were there held to have become the property of a wife at the death of her husband were distinctly found to have belonged, before the making of such deposit, to her husband alone. And yet DxkmAN, J., declared in pronouncing the opinion of the court: “ By reason of the unity of husband and wife in the view of the law an obligation taken in the name of both inures to the benefit of both, and the whole goes to the survivor.” “ This old rule of law,” he added, “ is stül prevalent in this State,” citing *Bartles*v. *Nunan,*92 N. Y., 152, and *Sanford*v. *Sanford,*45 N. Y., 723, and 58 N. Y., 72.

It was held by the court of appeals, in the latter case, that *383where a husband had loaned money, the taking by him of a promissory note for its repayment to the order of himself *and*his wife, imported a gift to his wife in case she should survive him. It was further held upon the second appeal that “ the fact that she” (the widow) “ gave the note to the appraisers as a part of her husband’s estate, while it is evidence tending to show that she had released to him her right of survivorship, is not conclusive, and does not estop her from claiming the note, in the absence of evidence that the position of any party has been changed in consequence, or that any transaction was had in reliance thereon.”

From the testimony of the administratrix in the case at bar it appears that in drawing the moneys in dispute from the bank where they were deposited she acted in her capacity as adminis-tratrix because the officer of the bank told her to do so, and she “ obey his order.” There is nothing at variance with the principle governing the cases above cited in the decisions of *Mulcahey*v. *The Emigrant's Industrial Savings*Bank, 89 N. Y., 435; *Gelster*v. *Syracuse Savings*Bank, 17 Week. Dig. 137, or *Syracuse Savings Bank*v. *Hess,*23 Week. Dig. 280. The exceptions which relate to the item of $1,929,04, must therefore be overruled.

*Second.*The decedent in his life-time was a member of several lodges and associations, by the provisions of whose constitutions and by-laws certain sums of money, amounting in all to $321, were paid after his death to his widow. She has charged herself with none of these moneys and the referee has held that, she is not liable to account for them in this proceeding.

From Chelsea division No. 12, of the Sons of Temperance, she has received $50. By the constitution and by-laws of that society, it is provided that in case of the death of a member, the sum of $50 shall be appropriated as a “funeral benefit” and shall be paid “ to the family of the deceased.”

From the Mamre Encampment I. O. of O. F., Mrs. Brooks received $40, the sum which under its constitution was payable upon her husband’s death as a “funeral benefit ” and “ to assist in defraying the expenses of burial.”

Eureka Encampment No. 177 I. O. O. F. paid her $100, that being the amount which in accordance with its constitution and by-laws was payable “ to the widow ” of a deceased member.

Mrs. Brooks received from the Fidelity Temple of Honor and Temperance the sum of $50. The by-laws of .that association provide that a sum no less than that shall be appropriated for the funeral expenses of a deceased member, and paid to the wife or immediate relatives, or expended by an officer of- the society in paying such bills as shall be contracted for a funeral.

The Chelsea Mutual Benefit Association, paid Mrs. Brooks $81, pursuant to one of its by-laws which provides that in the event of a death of a member, “ the sum of one dollar,” for each *384and every member shall be paid to the family of the deceased.”

I think that the referee has properly held, that the adminis-tratrix is not here accountable for any of these payments. It is well settled by numerous decisions that the disposition of moneys paid at a decedent’s death by benefit associations whereof he was a member, must be determined entirety by the constitutions and by-laws of such associations, and that such moneys are not assets of such decedent’s estate. *Greeno*v. *Greeno*23, Hun, 478. *Bown*v. *Catholic Mut. Ben.*Ass'n, 33 Hun, 263. *In re*Palmer, 3 Dem. 129. *Hellenberg*v. *B‘Nai*Berith, 94 N. Y., 580.

*Third.*The referee has found that the administratrix is entitled to credit on account of sums paid out by her as funeral expenses. The testimony shows that within six months after the decedent’s death, his widow received from the four associations first above named, as “ funeral benefits ” and “ funeral expenses,” a sum for which in this account she claims credit.

It is true that at the time these moneys were received the funeral expenses had been fully satisfied, but I think nevertheless that their reception must be considered as a reimbursement to the administratrix of any sums previously expended by her in connection with her husband’s funeral. *Leidenthal*v. *Correll,*5 Redf. 267.

*Fourth.*With the modifications above indicated the Referee’s report is confirmed.