Wickenheiser v. Herring 224 N.Y. 651

Emma E. Wickenheiser, Individually and as General Guardian of Walter J. Wickenheiser et al., Appellants, v. George Herring et al., Defendants, and Dry Dock Savings Institution et al., Respondents.

Wickenheiser v. Colonial Bank, 168 App. Div. 329, affirmed.

(Argued October 17, 1918;

decided November 1, 1918.)

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 13, 1915, modifying and affirming as modified a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term. The defendant Herring was executor of Charles F. Wickenheiser, deceased. Amongst the assets of the estate was an account in the Dry Dock Savings Institution. This account the executor had transferred to his own name individually. He thereafter transferred such account to the Colonial Bank as collateral security for a loan to him individually. The plaintiffs, sole legatees of the testator, sought, in this action, to have a trust impressed in their favor upon the fund on deposit. The Special Term in effect decreed that the plaintiffs were entitled .to the fund on deposit with the defendant Dry Dock Savings Institution. The Appellate Division decreed that the defendant Colonial Bank was entitled to have paid from the fund on deposit with the savings bank the sum loaned with interest, after which the balance of the fund was to be paid to the plaintiffs.

Artemas B. Smith for appellants.

Frank M. Tichenor for Dry Dock Savings Institution, respondent.

Jesse S. Epstein for Colonial Bank, respondent.