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Mantione v. Bonito

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


October 2, 2009

IN THE MATTER OF THE ACCOUNTING BY ANGELO MANTIONE, AS EXECUTOR OF THE ESTATE OF JOSEPHINE M. DEGRACE, ALSO KNOWN AS JOSEPHINE DEGRACE, ALSO KNOWN AS JOSEPHINE DIGRACE, DECEASED, PETITIONER-RESPONDENT;
v.
EVELYN BONITO, OBJECTANT-APPELLANT.

Appeal from an order of the Surrogate's Court, Erie County (Barbara Howe, S.), entered September 16, 2008. The order denied the objections of objectant to the accounting filed by the executor of decedent's estate.

PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, AND GREEN, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum

The objectant in this proceeding appeals from an order denying her objections to the accounting filed by the executor of decedent's estate. Surrogate's Court concluded that the objectant failed to acquire an interest in a joint account opened by decedent in her name and that of the objectant and that the executor, as decedent's attorney-in-fact, had not wrongfully converted the objectant's interest in the account by withdrawing the entire balance. We affirm. Although there is a presumption that parties to a joint account are entitled to an equal share of the account (see Banking Law § 675 [b]), that presumption was rebutted by evidence establishing that decedent "established the account for convenience and not with the intention of conferring a present beneficial interest on the [objectant]" (Matter of Friedman, 104 AD2d 366, 367, affd 64 NY2d 743).

20091002

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