Matter of Filipiak

In Matter of Filipiak (66 Misc 2d 742), the objectants in an executor's accounting proceeding contended that the transfer from the decedent to the executor of the sum of $ 15,000 was a loan, not a gift, and should have been reflected in the account as such; they also argued that they were entitled to a jury trial on this objection as it was in the nature of a conversion for which a jury trial is a matter of constitutional right. In denying the objectant's motion for a jury trial, the court held that the objectants were not asserting interference with their own possession of money, but rather were asserting ownership of the possession of money belonging to another, namely, the decedent. Since the relief sought was not predicated upon any interference with their own possession, the court found that the nature of the relief sought was in equity, rather than at law, as conversion is the unauthorized assumption and exercise of right of ownership over goods belonging to another (Matter of Filipiak, 66 Misc. 2d 742, 743).