44 N.Y.S. 521 | N.Y. App. Div. | 1897
It is conceded that William F. Du Bois, in his lifetime, deposited in the Union Dime Savings Institution the sum of $4,086.50. The account was opened and the deposit made, upon request of Du Bois, in these words : “ William F. Du Bois, trustee for Ellenora II. Decker (address 435 Hudson Street), widow, (age) 67, (parents’ name) Samuel, Sarah, (occupation) awnings. The number of the account is 180.769 ; the date it was opened, 31st day of July, 1886.” Du Bois and Decker were brother and sister. The former was a widower, and had been since 1882. He remarried in December of the same year in which the deposit was made. On August 1, 1887, Du Bois transferred $1,000 from the aforementioned deposit to an account which he opened in the same institution in the name of William A. Du Bois in trust for Lavinia A. Du Bois, his wife, the
The reason for this rule was made to rest upon the fact that depositors, for a variety of reasons, make deposits in banks in this form without at all intending to thereby divest themselves of title to the money. The intention of the depositor, therefore, becomes the question to be determined in each case, and its solution is governed by a consideration of all the facts and circumstances which surround the transaction, the case becoming essentially a question of fact. (Cunningham v. Davenport, 147 N. Y. 43.)
If the trust be once established it is irrevocable, in the absence of any reservation of power of revocation. (Mabie v. Bailey, 95 N. Y. 206.)
In the present case the court has found that the intention existed in the mind of the depositor, when he opened the account in trust for the plaintiff, to thereby divest himself of the title to the fund and vest the same in the plaintiff. We think that this conclusion has the support of sustaining testimony. Eliza McLean testified that Du Bois told her after the deposit was made that he had given plaintiff some four thousand and odd dollars, and the witness asked if
When this deposit was made Du Bois was a widower with no one dependent upon him, was of considerable means, and the witness McLean says that the brother and sister were on good terms and that he was “ one of the most loving brothers.” It does not appear that he had any one dependent upon him or that he had any other near relative than his sister. All of his surroundings, therefore, are consistent, and in many respects strongly indicative of an intent upon his part to create a trust in the fund in favor of his sister in accordance with the declaration of trust which he made. And this, coupled with the declarations which he thereafter made, furnish sufficient ground to uphold the finding of the court. It is true that his declaration made to other witnesses that he made these deposits for the purpose of - obtaining thereby more interest, coupled with the fact that he subsequently transferred the whole to his wife, is evidence and strong evidence that he did not intend at any time to create a trust in the fund in favor of his sister. But this evidence as to the interest is somewhat militated against by the fact that these accounts usually exceeded the sum of $3,000. The deposit in the
The judgment should, therefore, be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.