85 N.Y.S. 928 | N.Y. App. Div. | 1903
The decedent, Fanny A. Lattan, died intestate on March 19,1900. Her net personal estate amounts to over $10,000, and a controversy
In the year 1884, and prior to the opening of the accounts in question, the claimant’s father turned over to the deceased, who.was his sister, and to another sister in conjunction with her, all his property, amounting to about $20,000, for their management, free from any instructions from him. Ho account has ever been rendered to him for this property. The deceased made deposits of money at various times in her own' name in trust for various persons other than the claimant, but the books representing the accounts have all been delivered to the beneficiaries, and no question arises concerning them. The pass book of the Irving Savings Institution, representing a third deposit of $502.03, made by the deceased to her credit in trust for the claimant, has been delivered to him by the administrator. The two disputed deposits were also made in the Irving Savings Institution, one account being opened on January 2, 1886, and closed out by draft of deceased on July 8, 1898, and the other being opened on September 19,1890, and closed out by draft of the deceased on Hovember 15, 1894. The amount of the claim, covering both accounts, is $2,472.15, with interest from August 21, 1901, the date of the filing of the claim.'' The claimant was never. notified of the fact of the deposits by the deceased.
The accounts were opened explicitly in the name of “Fanny A. Lattan, trustee for Emile R. Lattan.” This was done by the deceased, she naming the beneficiary at the time of the original deposits in compliance with a rule of the bank which required the depositor of money “ if he wants to put it in trust ” to give the name “ of the person for whom he wishes to put it in trust.” "Whether she used the money belonging to the beneficiary’s father in opening the accounts does not appear other than inferentially. • There is no fact or circumstance, however, established in the case, tending in the slightest degree to qualify the effect of the déclaration of trust recorded at the time of the deposit in either instance or to show any intention on her part not to give her nephew the money or not to permit him
■ The claimant has been defeated in the court below because the learned referee and the learned surrogate are of the opinion that a valid trust cannot be created in the manner attempted by the deceased unless she dies before the beneficiary, leaving the account open and unexplained. The main authority for the conclusion reached is found in the remarks of Judge Andrews in the case
The Court of Appeals has never decided that an act such as that found herein to have been performed by the deceased in making a deposit in her own name in trust for another did not create a trust. It has never held that a solemn declaration of trust made in writing is not sufficient evidence of its own existence. In the leading case of Martin v. Funk (75 N. Y, 134), Chief Judge Church said (p. 141): “ In form, at least, the title to the money was changed from the intestate individually, to her as trustee. She stated to the bank that she desired the money to be thus deposited. It was so done by her direction, and she took a voucher to herself in trust for the plaintiff. Upon these facts, what other intent can be imputed to the intestate than such as her acts and declarations imported, and did they not import a trust ? There was no contingency or uncertainty in the circumstances, and I am unable to see wherein it was incomplete. The money was deposited unqualifiedly and absolutely in trust, and the intestate was the trustee. • It wofild scarcely have been stronger if she had written in the pass-book, I hereby declare that I have deposited this money for the benefit of the plaintiff and I hold the same.as trustee for her.’ This would have been a plain declaration of trust, and accompanied as it was with a formal transfer to herself in the capacity of trustee would have been deemed sufficient under the most rigid rulés to be found in any of the authorities. It seems to me that this was the necessary legal intendment of the transaction, and that it was sufficient to pass the title.
In Willis v. Smyth (91 N. Y. 297) and in Mabie v. Bailey (95 id. 206) the Court of Appeals affirmed recoveries by the donees against the estates of the depositors where the deposits in trust, as in the case at bar, had been drawn out by the depositors in their lifetime. The right of action in a similar case was upheld in this department by the former General Term in Scott v. Harbeck (49 Hun, 292), and the authority of these decisions has never been overthrown. They have been frequently followed in recognition of the doctrine that a deposit made in the form herein disclosed, while not conclusive evidence of the creation of a trust, is yet sufficient, and that when once created the trust cannot be revoked in the absence of a power of revocation reserved. (See Matter of Mueller, 15 App. Div. 67; Decker v. Union Dime Savings Institution, Id. 553 ; Williams v. Brooklyn Savings Bank, 51 id. 332; Harrison v. Totten, 53 id. 178 ; Robertson v. McCarty, 54 id. 103 ; Meislahn v. Meislahn, 56 id. 566; Robinson v. Appleby, 69 id. 509; affd., 173 N. Y. 626 ; Jenkins v. Baker, 77 App. Div. 509 ; Matter of Barefield, 82 id. 463 ; Marsh v. Keogh, Id. 503.) Many other authorities could be ■ cited to the same effect, and none can be found to the contrary. The case of Robinson v. Appleby (supra) was precisely like this one except that the depositor did not die before the beneficiary (which is another feature of the assumed dictum of Judge Bartlett in the Cunningham Case [supra], which largely controlled the learned referee and surrogate); but the beneficiary died first,
The decision in this case helow (Matter of Totten, 38 Misc. Rep. 349) has been made in confessed defiance of the decisions of this court herein cited, in the belief on the part of the learned referee ■and the learned surrogate that the Court of Appeals either has decided dr intends to decide accordingly. No. such decision, is quoted in either opinion, and none is cited on the brief of the learned counsel for the respondents. None has been found by this court, and it would not be proper to assume that one is forthcoming. The existing decisions, therefore^ require a reversal. The decree, in so far as it confirms the finding of the referee against the validity of the appellant’s claim, should be reversed upon the law and the facts, and the claim established and allowed in full, with costs.
Goodrich, P. J., Bartlett, Woodward and Jenks, JJ., concurred.
Decree of the Surrogate’s Court of Kings county, in so far as it confirms the finding of the referee against the validity of the appellant’s claim, reversed upon the law and facts, and claim allowed, with costs. Proceedings remitted to the Surrogate’s Court for disposition accordingly.