In the Matter of the Estate of Michael Motta, Deceased. George J. Robertazzi, as Preliminary Executor of Michael Motta, Deceased, Respondent; John Nappy, as Executor of Mary Nappy, Deceased, Appellant

In the Matter of the Estate of Michael Motta, Deceased. George J. Robertazzi, as Preliminary Executor of Michael Motta, Deceased, Respondent; John Nappy, as Executor of Mary Nappy, Deceased, Appellant. [MAJORITY] —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 NY 112; Walsh v Emigrant Ind. Sav. Bank, 106 Mise 628, affd 192 App Div 908, affd 233 NY 512; Matter of Athanasiou, 24 Mise 2d 12.) Latham, J. P., Damiani, Titone and Suozzi, JJ., concur.