Jenks, J.:
During her last illness from a chronic disease, Sarah Baker exe. ctited, acknowledged and delivered this writing to the defendant:
Yonkers, M. Y., Féb. 8, 1904.
“ Yonkers Savings Bank,
“ Yonkers, N. Y.: .
“Gentlemen.— I am confined to my bed and too ill to come to the Bank. .In order that Mr. George G. Shrive may be able to use *453and pay out the money I now have or may in the future have on deposit with you, I hereby request you to add his name to my book without any restrictions.
“Tours respectfully,
her
“ SARAH J. X BAKER.”1
mark
The attorney who took the acknowledgment showed her the bank book with this assignment written in it, and said, “ this 'transfers all. your money to Mr. George (the defendant’s first name), is that what yon wish to do ? ” and she answered “ yes.” A t that time she delivered the bank book to the defendant. Upon this evidence alone the effect of the transaction was at least to vest in i the defendant a joint ownership in the fund, who, .if the survivor, would be entitled to it all. (Farrelly v. Emigrant Industrial Savings Bank, 92 A.D. 529" court="N.Y. App. Div." date_filed="1904-03-15" href="https://app.midpage.ai/document/farrelly-v-emigrant-industrial-savings-bank-5194723?utm_source=webapp" opinion_id="5194723">92 App. Div. 529, 531, and authorities cited.) But in Taylor v. Kelly (5 Hun, 115) it was held: “ To constitute a’ gift a manual delivery of the thing given is not necessary. A delivery to a third person as trustee ■ or bailee of the donee is sufficient to pass the title, and the donor may, by an apt declaration to that effect, convert himself into a trustee for the donee.” (See, too, Phipard v. Phipard, 55 Hun, 436; Holliday v. Lewis, 14 id. 480.) Therefore, a question is presented whether such delivery was to the defendant for his benefit, or as bailee or trustee for the infant plaintiffs. The Special Term has found that the defendant recéived and accepted the gift for their benefit, and although the point is made that proof which depends upon admissions is sharply scrutinized and that evidence to sustain such a finding must be clear and convincing, yet I think that we would not be warranted to disturb this finding upon the facts, within, the rule laid down in Lowery v. Erskine (113 N.Y. 52" court="NY" date_filed="1889-03-12" href="https://app.midpage.ai/document/lowery-v--erskine-3599500?utm_source=webapp" opinion_id="3599500">113 N. Y. 52); Foster v. Bookwalter (152 id. 166); Parfitt v. Ferguson (3 A.D. 176" court="N.Y. App. Div." date_filed="1896-07-01" href="https://app.midpage.ai/document/parfitt-v-ferguson-5180111?utm_source=webapp" opinion_id="5180111">3 App. Div. 176), and City of New York v. Herdje (68 id. 370). The testimony of Dr. Trotter, the physician of Sarah, is that several days before her death the defendant said to him that she had no relatives; if she died intestate her money would revert to the State; the Mann children would not get it, and her intention had been that they should receive it. A. day or two thereafter he told the *454witness -that Mr. Thayer (an' attorney) had been there and they “had fixed it all right.; * * -* she had signed a paper and had the thing legally fixed for the benefit of the Mann children.”. On cross-examination the witness testifies that the defendant said Mr. / • Thayer had been “ there and the thing; was all-fixed Satisfactory,” but he was not positive that he mentioned- the Mann children; he did-not, but “that was understood.” Edward Mann, the father of the children, testifies that after the funeral the defendant told him that Judge Thayer had been to the house,, and through him he had 'secured the money to the children of the witness; that the day after, the- defendant said he had changed fins mind about' the effects^-that' Mrs. Mann must not come after-them; that he was going to hold them, but that the money was in trust for' the children. Later the defendant said the. matter was in the surrogate’s ' hands. Mrs. Mann testifies that the defendant talked to her in the presence of his wife. He then said that Sarah had told him that she. wanted the money, for the three children in his trust, but “she didn’t have but about $500, but she must have-been very liberal with her friend's.” He said that he had accepted the money, and was going to hold it in trust for the benefit of the children and through Judge Thayer had obtained it", for her children. A few days after the funeral, when she asked if- he was “ going -to come up to his Word,” he took a paper from his desk, showed it to her and said, “ everything is to the. Surrogate, I have nothing to- do with it.” On the other hand, the defendant denies- that he ever told the.Manns that Sarah had left her property otherwise than to him or .that he had ever admitted to any one that he held the money in trust. He does admit that he said to Dr. Trotter-before the paper was executed that it seemed too bad that Sarah -could not make her will, and that as it looked now, unless something was done he would have to pay -the funeral expenses, that the Mann children would not get anything, but that the property would go to the State. .He testifies that, he told Dr. Trotter that it had been satisfactorily arranged, that Judge Thayer had come down and that it had been transferred to him, but that lie said nothing 'about the trust. ■ He admits that ■lie did “say something” to Mr. Mann “about advancing something to the children, or helping them in some way,”'.and that he understood thatat times ” Sarah had wanted to give something to the *455children or to the church, but finally she desired to give it - all to him. The mother of the defendant testifies that Sarah, nearing her end, said she wanted to leave her money to her two boys and nothing to the Manns or to any other perso'n. Dr. Trotter, recalled, testifies that at the second conversation the defendant did not say anything __ to the effect that Sarah had given him the money absolutely. Mr. Broughall testifies that the defendant said that Mr. Mann said that defendant owed him (Mr. Mann) money, that whatever Sarah had left would go to her relatives and that he had sought them down south, as he thought they needed it more than the Manns, and if Mann had said nothing, Mann could have had a “few hundred dollars.” While this is all of the evidence that bears directly on the transaction, other circumstances lighten it up. (Minchin v. Merrill, 2 Edw. Ch. 333" court="None" date_filed="1834-11-21" href="https://app.midpage.ai/document/minchin-v-merrill-5549105?utm_source=webapp" opinion_id="5549105">2 Edw. Ch. 333, 338.) Sarah was an old colored spinster who had been a domestic servant in several families. She had no relatives. The Mann family were .of her color, and in apparently the same station in life. When out of service or ill she made her home with them as one of the family without charge, and was nursed by them in her illnesses. She was the godmother of the three children, and called them her children. She had repeatedly declared, even to her physician, if she left anything she wished it to go to them. A few months.prior to her death she had attempted to insure her life for the children, declaring that she was their godmother, that she had no relatives, and she considered it her duty to provide something for them. This declaration was made to the insurance agent in the presence of the defendant. She had told the children that at her death, all would go to them. On the other hand the defendant was far above her, and apparently in good circumstances. She had once lived in his family for many years as a servant, but had gone else* where and had only returned to his service for eight months before she died. There was no unbroken relation of continuous service through . which a menial almost merges into a member of the family. On the other hand, she was dying while a servant in his house; it was but natural that an illiterate woman should intrust her money to him as her almoner, and should turn to him to carry oiit her wishes. While the transaction in its entirety is sufficient to establish a gift, the terms of the written transfer to the defendant are to “ use and pay out,” which contemplate a disbursement by the recipient rather-*456than an absolute gift to him. . Inasmuch as1 a lawyer was.called in nothing could have been easier than to employ apt words that would have settled the terms of the transfer beyond all cavil. There are two significant matters in the defendant’s case. Mrs. Mann testifies that the declarations of the'deferidant were made in the presence of the defendant’s wife. That lady was not called as a witness, although there was a continuance of the case, and no explanation of her absence appears. ' The whole amount of the deposit was $972. On February tenth, the day before Sarah’s death, the defendant drew out $400, and during the time intervening the twenty-fourth of that month and the ensuing April second, he drew out the whole deposit. The defendant testifies that the funeral cost $300, and that the casket cost $165. He thereafter denied the correctness of the undertaker’sfbill when it appeared therefrom that the casket cost $84, but later on, when the undertaker showed that the cost was $84 and the funeral expenses were $165.50, it was admitted that the bill was correct. The mother of the defendant is directly contradicted' by Mary Brown, who testifies that the lady said to her that Sarah said when she died she would leave ‘ the Mann children something. So far, then, as the Special Term finds that the transfer of the fund to the defendant was for the benefit of these infant children, I think that its determination must be affirmed. And such an undertaking on the part of the defendant can be sustained. In Rutgers v. Lucet (2 Johns. Cas. 92" court="N.Y. Sup. Ct." date_filed="1800-10-15" href="https://app.midpage.ai/document/rutgers-v-lucet-5474796?utm_source=webapp" opinion_id="5474796">2 Johns. Cas. 92) the court say (p. 95)“A mere agreement to undertake a trust, in futuro, without compensation, it is trite, is not obligatory; but when once ' undertaken, and the trust actually entered upon, the bailee is bound to perform it, according to the terms of his agreement.- The confidence placed in him, and his undertaking to execute the trust, raise a sufficient consideration ; a contrary doctrine would tend to injure and deceive his employer, who might be unwilling to consent to the bailment on any other terms.” (See, too, McKee v. Lamon, 159 U.S. 317" court="SCOTUS" date_filed="1895-10-21" href="https://app.midpage.ai/document/mckee-v-lamon-94258?utm_source=webapp" opinion_id="94258">159 U. S. 317, 322; Story Eq. Juris. [13th ed.] §§ 1041, 1046.) I think that the transaction must be regarded as a gift of the fund, or so much- thereof as might remain after the payment of any proper charges against it for the benefit or on account of Sarah Baker. Any payments which constituted a proper charge against it — for she left nothing else save a few personal effects:—: cannot, despite their payment therefrom, be *457charged against the defendant in order to make whole the amount of the fund át the time of the transfer. The physician’s services, the funeral expenses, or any other proper and necessary outlay of like kind, could be discharged from the fund. But as to the residue, he must account to the infants or to their representatives. ' I do not think that there was a trust created in the sense that the defendant was to hold the money for the benefit of these infants for any period of time, but that the plain intent of Sarah was to afford a payment to them, or, as they are infants, to their representatives for their benefit.
The judgment should be modified in accord with this opinion, and as modified affirmed, without costs.
.Hirsohberg, P. J., Woodward, Bioh and Miller, JJ., concurred.
Judgment modified in accordance with the opinion of Jenks, J., and as modified affirmed, without costs. Order to bé settled before Mr Justice Jenks.