112 N.Y.S. 529 | N.Y. App. Div. | 1908
It is now settled in this state that the mere fact of one depositing his own money in his-own name in trust for another in a savings bank does not prove a trust, the act being equivocal, i. e., as com sistent with some other intention, and therefore not probative of a trust; - but that if the depositor happen to die on the way home, or at any time while the deposit account stands, then it is a trust, and a completed gift to the person named as cestui is made out. “ When a deposit is made in trust and the depositor dies intestate leaving it undisturbed, in the absence of other' evidence the presumption seems to arise that a trust was intended in order to avoid the trouble of making a will “ A deposit by one person of his Own money, in his own name as trustee for another, standing alone, does not establish an irrevocable trust during the lifetime of the depositor. It is a tentative trust merely, revocable at will, until' the depositor dies or completes the gift in his lifetime by some unequivocal act or declaration ” (Matter of Totten, 179 N. Y. 112). It seems that the accident or fact of death turns that which may not have been and could not be found to be the intention of the deceased into his intention. But the gift is completed only, at the instant of death. Up to that time the money is that of the depositor to draw out and do with it as he pleases. That being so it must
Ho objection is 'made to the form or maintainability of the suit.
The judgment should be reversed.
Woodward, Hooker, Rich and Miller, JJ., concurred.
Judgment reversed on question of fact and of- law, and new trial granted, costs to abide the event.