95 N.Y.S. 97 | N.Y. App. Div. | 1905
On the 10th day of Fovember, 1884, Louis H. Lattan opened-accounts in each of four savings banks in the names of his sisters, Fanny A. Lattan and Angelica Lattan, the defendants’ decedents,, in trust for the plaintiffs, his children, and on the same day transferred to them in form as such trustees sixteen shares of bank stock, and on the 5th day of January, 1885, in like manner transferred to them twenty shares of bank stock. This action is brought to recover the amount of said deposits and the proceeds of said bank stock which then amounted to $6,800, and with interest added now amounts to approximately $18,000. On. said Fovember tenth the said Louis H." Lattan also opened a savings bank account of $1,000 in the name of said Angelica Lattan as trustee of said children, and transferred thirty-eight shares of bank stock in form to said Angelica and Fanny as said trustees, and on the 26th day of March, 1885, he opened another savings bank account of $1,200 in his own name as trustee for said children. The moneys só deposited and the stock so transferred were substantially his share of his father’s estate, which when delivered to him in May, 1884, amounted to $11,936.90 and then. comprised his entire. estate. Subsequently, and in the year 1885 he received $4,000 from adjudgment recovered against the city of Few York and about $4,500 as his share on the distri
This case is distinguishable from the Totten case in that the deposit in the latter was made in the name of the depositor, who retained the bank book, but if this was not sufficient to create even a presumption of an intention to establish an irrevocable trust, it would seem that the mere deposit in the name of a third person as trustee, though accompanied by a delivery of the passbook to the trustee, was not conclusive. As the evidence seems to me to compel the conclusion that a tentative and not an irrevocable trust was intended, I advise that the .judgment be reversed upon the law and the facts, and a new trial granted, costs to abide the final award of costs.
Woodward, Jenks and Rich, JJ., concurred; Hirschberg, P. J., dissented.
Judgment reversed upon the law and facts, and new trial granted, costs to abide the final award of costs.