Opinion
September 25, 1978
In a proceeding brought by the executor of the estate of Michael Motta to recover the funds contained in a Totten Trust created by the deceased for the benefit of his sister, Mary Nappy, the appeal is from an order of the Surrogate's Court, Kings County, dated October 21, 1977, which granted the petition. Order affirmed, with costs payable by the appellant. The Surrogate properly determined that the following evidence proved that Motta revoked the Totten Trust account in 1972: (1) the oral declaration by Motta at the time he executed his final will in 1972 that he did not want his sister to have any of his money, and (2) the obliteration of Mary Nappy's name from the savings bank passbook in Motta's safe deposit box. (See Matter of Totten, 179 N.Y. 112; Walsh v Emigrant Ind. Sav. Bank, 106 Misc. 628, affd 192 App. Div. 908, affd 233 N.Y. 512; Matter of Athanasiou, 24 Misc.2d 12.) Latham, J.P., Damiani, Titone and Suozzi, JJ., concur.