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Conry v. Maloney

Decided: December 4, 1950.

JULIA CONRY, PLAINTIFF-RESPONDENT,
v.
"MARY" MALONEY, THE FIRST NAME BEING FICTITIOUS, ALSO KNOWN AS MRS. MICHAEL J. MALONEY, DEFENDANT-APPELLANT



On appeal from the Superior Court, Chancery Division.

For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For reversal -- None. The opinion of the court was delivered by Wachenfeld, J.

Wachenfeld

Michael J. Maloney, uncle of the plaintiff and husband of the defendant, died on October 31, 1948, a resident of Monmouth County. In August, 1944, he had established three savings accounts in three New York City banks in his own name "in trust for Julia Conry" or "in trust for Julia Conry, niece." In June, 1945, he opened a fourth account in a fourth New York bank, in his own name and again "in trust for Julia Conry."

All four of the bank books were turned over to Julia Conry by the decedent, apparently for safekeeping. In May, 1946, and again sometime in September, 1947, the plaintiff delivered the books to her uncle, at his request, and each time he returned them to her, the second time saying: "This is for you. You can do with it what you want to, and if anybody gets them away from you it is your own fault."

On September 29, 1947, the decedent opened two more savings accounts, both in his own name, one being in trust for Michael J. Maloney, a nephew, and the other in trust for Julia Jacobson, another niece.

Four days before Michael Maloney died, he asked the plaintiff to inquire about the procedure necessary to transfer all this money to the bank in Red Bank where he kept his personal

checking account. Pursuant to his request, she made the inquiry and, acting upon instructions received at the bank, delivered to him the following day the six bank books together with withdrawal slips to be used in effecting the transfer.

During the ensuing three days before his death, Michael Maloney had at hand the bank books and withdrawal slips. He did not, however, sign the slips or take any other affirmative step toward withdrawing the money in the trust accounts. After his death, his widow, the defendant here, delivered to his nephew and his other niece, Julia Jacobson, the pass books for the accounts in which they were named as beneficiaries. She refused, however, to deliver to the plaintiff the pass books for the four accounts in which she was so named.

The widow remained adamant in her refusal for about eleven months and the plaintiff then filed a complaint in the Chancery Division, Monmouth County, demanding that the four bank books be surrendered to her. The court below found in her favor, holding the trusts created by the establishment of the accounts, while revocable during the decedent's lifetime, had not in fact been revoked by him.

An appeal was taken to the Superior Court, Appellate Division, and certified here on our own motion. The defendant urges reversal on the ground that the trusts were, as found below, revocable and that they were actually revoked by the decedent prior to his death.

The evidence relied on consists almost entirely of the defendant's own unsupported testimony. She testified, over objection, that on the morning of the day before her husband's death she, at his request, handed him the six bank books and the withdrawal slips, whereupon he said:

"I want you to go up Monday morning and draw all of this money out. I will sign the slips and you go up and draw it out. I want it put in my checking account ...


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