140 N.Y.S. 724 | N.Y. App. Div. | 1913
Lead Opinion
Defendant demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled and he appeals.
The facts set out in the complaint are, in substance, that the defendant, a maternal uncle of the plaintiff, on the 28th of December, 1905, opened an account in the North Kiver Savings Bank -by depositing the sum of five dollars to the credit of “ James A. McKinley in trust for Mary Hessen ” (this plaintiff) and received a pass book No. 92,Ml; that from time to time thereafter up to the 29th of January, 1908, other deposits were made by him to the credit of this account, which, together with the interest thereon, amounted in July, 1908, to $2,529.78. that on the 3d of September, 1908, he withdrew this amount from the bank; that after the account had been opened defendant on several occasions exhibited the pass book to her “and acknowledged and declared to her and to other persons that the amount of the account in said savings bank was for her and
In Matter of Totten (119 N. Y. 112) the court formulated the rule which was to be applied in determining the rights and interests of parties in savings bank accounts similar to the one here under consideration. It said: ££ 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, such as delivery of the pass book or notice to the beneficiary. In case the depositor dies before the beneficiary without revocation, or some decisive act or declaration of disaffirmance, the presumption arises that an absolute trust was created as to the balance oh hand at the death of the depositor.”
Under this rule the deposit in the form in which it was made created a tentative trust, revocable at will. It could be made irrevocable only (a) by some specific act or declaration by the depositor, or (b) by the death of the depositor before the beneficiary without revocation. It is urged that this rule does not apply since the defendant, prior to the time the ■ money was withdrawn and the plaintiff became twenty-one years of age, exhibited the pass book to her and declared to her and others that the amount of the account was for her and intended to be for her, ££ and that upon her coming of age she would be entitled to get the same as her property.”
Tierney v. Fitzpatrick (122 App. Div. 623) in some respects is quite like the present case. There it was sought to take the case out of the rule laid down in Matter of Totten (supra) by showing that the depositor took the pass book to the house of the plaintiff and stated to him, “Here, Frank, here is the book. I have started an account in the bank, so if anything would happen to me you would have something to fall back upon. * * * ” And then the book was put in a safe in plaintiff’s house, to which the depositor also had access. It was held that such declarations and act did not make the trust irrevocable inasmuch as it negatived the idea that any present interest was to pass to the cestui que trust during the lifetime of the depositor. It is true that the decision of this court was reversed (195 N. Y. 433), but solely upon the ground that the trial court erred in admitting evidence of declarations made by the depositor after the money had been placed in the savings bank to the effect that the reason he had opened the account in the form which he did was that he already had as much money in the bank in his own name as he was permitted to draw interest upon.
The judgment appealed from, therefore, is reversed, the demurrer sustained, with leave to plaintiff to serve an amended complaint upon payment of the costs in this court and in the court below.
Ingraham, P. J., and Clarke, J., concurred; Laughlin and Scott, JJ., dissented.
Dissenting Opinion
I am of the opinion that the proper construction of the statement by the settlor of the trust is that the trust was to terminate when the beneficiary attained the age of twenty-one years, and not that it was revocable. I, therefore, dissent.
Scott, J., concurred.
Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs.