25 Misc. 140 | N.Y. App. Term. | 1898
On the 27th day of June, 1890', the defendant opened an account in the Emigrant Industrial Savings Bank under the title of “Ann Kennedy, for niece, Ann Lee.” On that day she deposited the sum of $300, and on three other occasions additional deposits were made by her, so that on July 1, 1893, when the account was closed, the total amount of such deposits was the- sum of $1,400. The niece, Ann Lee, referred to in the title of the account, was plaintiff’s intestate, who died on the 15th day of July, 1895, some two years after the closing of the account and the withdrawal by the defendant of the balance on deposit. The plaintiff, to whom letters of administration have been issued upon the estate of the deceased, has brought this action to recover the amount so deposited and withdrawn upon a general allegation of money had and received by the defendant to the use of the said deceased. The defendant’s answer was a general denial.
In support of her cause of action, the plaintiff proved the account with the bank in the form above stated, its amount and the withdrawal of the balance by defendant, who had retained -the bank-book in her possession, and then rested. Proofs were then offered on the part of defendant for the purpose of negativing any inference which might legitimately be drawn from the form of the account that she intended either to give the money to Ann Lee or to declare an unqualified trust in her favor with respect to the deposit.
In Cunningham v. Davenport, supra, Judge Bartlett, giving the opinion of the court, refers to the case of Beaver v. Beaver, and says (p. 41): “ We think the reasoning of this opinion is equally .applicable to a case presenting the question whether a trust is created by opening an account in the name of, or in trust for, a third party.” This case is peculiarly authoritative for the reason that the court reviews the cases involving the principle under ■discussion which had been previously decided, and declares the ■doctrine established by them, in part to be (p. 41), “ that the act ■of a depositor in opening an account in a savings bank in trust for .-a third party, the depositor retaining possession of the bank-book .and failing to notify the beneficiary, creates a trust if the ■depositor dies before the beneficiary, leaving the trust account ■open and unexplained. If the intent can be strengthened by acts ■and declarations of the depositor in his lifetime amounting to publication of his intent a more satisfactory case is made out, but it is not absolutely essential, in the absence of explanation, where he dies leaving the trust account existing.”
Since this decision, the Appellate Division in this department has given a broader generalization of the principle in the following language: “ The rule now established in this State is that whether or not a trust was created depends upon the intention of the donor at the time of the opening of the account and of the deposits made in the bank, and that question is a question of fact to be determined in each particular case from the acts and declarations of the parties and the circumstances surrounding the transaction at the time of the performance of the several acts.” Haux v. Dry Dock Savings Inst., 2 App. Div. 165; affirmed, 154 N. Y. 736.
It is thus well established that, notwithstanding the declarations contained in the pass-book that the deposit is “ in trust ” for .another, the depositor may still show that there was no trust intended or created.
In the case at bar, upon the close of plaintiff’s proofs, the defendant, testifying in her own behalf, stated what took place at the time of the deposit, which can best be given by the following •extract from the record: “ Q. What did he (the bank officer) say as to how you were to put it in, in order to do that thing? A. I just told him I was to put it in in trust for the girl. Q. (The
The testimony of the defendant, then, with respect to what took place between herself and the bank, was properly admitted, and, as the jury found a verdict in her favor, it must be accepted here as unimpeachable. How, then, can the plaintiff hope to succeed upon such a state of facts? There was no immediate, irrevocable trust created which gave the plaintiff’s intestate a present vested beneficial interest in the fund in question. She was to have the money covered by the account provided she continued to live with the defendant, and in case she survived the latter. The evidence shows that neither condition has been satisfied. She left the defendant’s house and care some time before the money was drawn from the bank, and is now deceased. So that, assuming that there was a trust, it was of a qualified nature, and was defeated by a failure of the conditions upon which it was limited.
There was some evidence elicited by the plaintiff in rebuttal tending to show that the defendant received the wages of the plaintiff’s intestate, who was a minor, and deposited them in the account. The proof with respect to the amount so received and
We have considered the other exceptions in the case, but do not think that they present cause for a reversal of the judgment. The judgment for the defendant rendered upon the verdict in her favor was right, and should be affirmed.
GrlLDEKSLEEVE and GrlEGERICH, JJ., COnCUT.
Judgment affirmed, with costs.