Eastwood, Goldmann and Schettino. The opinion of the court was delivered by Schettino, J.s.c. (temporarily assigned).
[32 NJSuper Page 221] Appeal and cross-appeal are taken from a judgment of the Chancery Division on an action brought against defendant widow, Rose Maggio, to have her declared a trustee of certain assets in her possession at the time of her husband's death, alleging that the assets belonged to her husband and for an accounting.
Defendant Rose Maggio appeals from so much of the judgment as requires her to turn over and to account certain assets to the intervenor-administrator. Plaintiff and administrator cross-appeal from the part of the judgment as determines that any of the personal property is the property of defendant Rose Maggio, and from the denial of a counsel fee. Part of the judgment refers to certain real estate, and as to that part of the judgment no appeal is taken.
Our examination of the record indicates that statements contained in the trial judge's fact findings which are part of the judgment are comprehensive and we quote from parts of them at length. The trial court stated:
"The within cause was heard and tried on November 9th, 1953 and continued to November 12th, 1953, with the Armistice holiday intervening, on testimony taken and documentary proof offered and admitted in evidence.
The parties stipulated in the pretrial order and admitted at the trial that: (a) the plaintiff is the sole child of the decedent and the defendant, the surviving widow; (b) the deceased died intestate on February 5th, 1950, in Newark, New Jersey; (c) where all the property in question exists; (d) decedent and defendant operated together a fruit and vegetable business at 98-98-1/2 Seventh Avenue, Newark, New Jersey, for many years; (e) that defendant widow did not apply for letters of administration, claiming that her husband left an estate less than required for administration; and (f) that the court ruled, on defendant's motion to dismiss the action, that an administrator be appointed and permitted to intervene in the action, as party plaintiff.
It is admitted and appears of record that George H. Callahan, Esquire, was appointed and intervened, as substituted administrator, in substitution for Alfred C. Clapp, former administrator, who, on his own motion and consent order, was relieved of his duties because of his appointment to the judiciary.
The plaintiff proved, through herself and witnesses, that her father, at the time of his death, left personal articles consisting of jewelry, automobile, hunting dogs and equipment; plaintiff further claimed and supported by testimony and documentary proof the existence of three joint bank accounts in the total sum of $30,000, at the time of her father's death, in depositories, as follows: $10,000 in the joint names of decedent and defendant widow, in each of three Newark banks: (1) the Federal Trust Company, (2) the Fidelity Union Trust Company in the North Ward Branch, and (3) the United States Trust Company, in the branch formerly known as the Columbus Trust Company; that the first-named account in the Federal Trust Company was originally opened and always remained as a
joint account between the said co-depositors; that the other two accounts in the respective banks named were originally opened in the name of the defendant but before decedent's death were converted into joint accounts.
Regarding the said joint accounts, it was admitted and proved that the money deposited therein was derived from the jointly operated fruit and vegetable business, in which no books were in existence and the accounts loosely handled; in addition, there was evidence that the decedent carried on his person and kept in his home large sums of money derived from and used in his separate dealings, as a commission merchant and occasionally as a bondsman for friends, putting up cash recognizances; that the decedent made all the deposits in the stated bank accounts both before and after they all became joint accounts, as specified; which was admitted by the defendant. There is proof that on several occasions the deceased boasted and claimed that the funds in these joint accounts were his and that he asserted ownership, management and control over these joint accounts, permitting no withdrawals from them except the interest, as it accrued from time to time, over the years, since their inception as joint accounts. The bank records show that $15,000 were deposited in two joint accounts within 24 hours, by deposits of $5,000 each, in the Federal Trust Company and the Fidelity-Union Trust Company, respectively, on January 8, 1947 and January 9, 1947; and, that $5,000 was deposited in the United States Trust Company, Columbus Branch, 27 days before death of decedent, when said account before that time stood in the name of Rosina Omaggio became a joint account with the defendant and decedent becoming the co-depositors thereon. Whereby $30,000 on deposit in these joint accounts, at the time of decedent's death, reached that total by four deposits of $5,000 each in the sum of $20,000.
There was proof that defendant had in her possession, at decedent's death, the cash sum of $7,500.00, on hand and undeposited; this money was counted at the home of the plaintiff, in the presence of members of her family and in the presence of the defendant, upon her alleged assertion that it was money belonging to the decedent. This was denied by the defendant, who claimed that she brought the money there for safe keeping and that it was counted at plaintiff's volition, and that this was money she saved from the proceeds of the fruit and vegetable business, a little at a time over a period of approximately seven years.
The defendant took into possession and deposited into her own account all the money on deposit in each of the three joint accounts in the respective banks mentioned. This was done by installment, half on one day, in the presence of the plaintiff, stating that she was taking out her own half and was leaving the other half in the joint accounts for plaintiff; the other half on a later day, after making a will partially in favor of the plaintiff. In her affidavit attached to the report and appraisal filed with the State Inheritance Tax
Bureau, the defendant averred that half of the money in the joint bank accounts belonged to her as proceeds from the fruit and vegetable business, operated together with her husband; and that only the remaining half was taxable, as an asset of inheritance. The rebuttable presumption that the funds on deposit in a joint account becomes the property of the survivor, has been overcome by clear and convincing proof that decedent asserted ownership, dominion and control over the joint accounts; did not permit any withdrawals therefrom since their inception as joint accounts, except interest as it accrued through the years from time to time; that he did not intend any gift in praesenti , nor make any gift causa mortis to be possessed and enjoyed in the event of survival, nor was any gift inter vivos made or intended; lacking the legal elements of such gifts and the property being testamentary in character would at all events in this case be void, since the decedent died intestate, without a will. That the bank making even mandatory payment of the funds in a joint account to the survivor, merely is saved from liability since the style and form of a joint account does not determine the relative rights of the co-depositors inter se."
"There was further proof of a balance of $3,015, at decedent's death, in an account in the Carteret Savings and Loan Association of Newark, for 25 paid-up shares of stock, standing in the name of the defendant since its inception, which plaintiff claimed belonged to her father by virtue of an oral trust agreement between him and defendant, that the money belonged to him and was for his use and benefit. The testimony fell short of convincing proof that the said cash on hand and the balance of the Carteret account was the property of the deceased; the defendant proved to my satisfaction that these funds represented savings by her, through the years and therefore belong to her."
The trial court also concluded that
"on the basis of the oral and documentary proof before it, * * * the specified personal articles aforesaid and the sum of $15,000, representing one-half of the total amount of the joint accounts, is property left by the decedent at ...