13 N.Y.S. 925 | New York Court of Common Pleas | 1891
The plaintiff, whose name was Catharine Conlon, had been a domestic servant up to July, 1888, and from her savings had deposited with the Franklin Savings Bank various sums of money. At the last-named date she went to live with Patrick Markey, and she testified that she was married to him at that time. The trial judge appears to have thought that the defendant Markey’s denial of the marriage counterbalanced the plaintiff’s assertion, for he found at defendant’s request that the plaintiff is not named Catharine Markey, and that such name is assumed by her without right or authority, and that her true and proper name is Catharine Conlon. During her residence with Markey, however, they were known as man and wife, and she was called by his name with his knowledge. Assuming, therefore, as defendant Markey would have us believe, that the cohabitation between himself and the plaintiff was not sanctioned by marriage, this illicit connection continued for four years up to September, 1887, when they went out for a walk, and, after a quarrel, parted. These relations between the parties have some bearing on the question in dispute in this case, which relates to the money in bank deposited by the plaintiff, and to an alleged transfer of it by her to him, or. in trust for him, on March 17, 1886, while they were living together. On that date the plaintiff went to the bank, and, after making deposits amounting to $120, requested the secretary, whom she saw, “to put Patrick Markey’s name upon the book.” What she meant by this is not shown, nor whether she intended to give Patrick Markey any interest in her money, except that the idea which she conveyed to the secretary was, as he swears, that she wanted to give Markey an equal share with herself. Whether this was so or not, her views assumed a distinct shape from the subsequent suggestions of the secretary. He asked her “if she wanted it in trust, or either to draw,” and he proceeded to explain to her what he understood to be the difference between putting it in trust and having it in joint account, either party to draw. He told her that if she put it in trust she would have control of it as long as she lived, and in the event- of her death it would goto Markey. She then stated that that was what she wanted, and the secretary wrote in the words “in trust for Patrick Markey” after her name, on her pass-book. It is claimed by the defendants that the plaintiff by this act declared and established a trust in favor of Patrick Markey as beneficiary of the whole sum which she had at that time on deposit at the bank, and which, with interest, at the time of the trial of this action, amounted to $1,128.51. This action is brought by the plaintiff to have it adjudged that Patrick Markey has no interest in the money, and that she is the owner thereof, and that the bank pay the same to her, and that defendant Markey deliver up to her her bank pass-book, which remained with him when she left him in September, 1887, and which he refuses to deliver up on her demand, claiming that the plaintiff sold, assigned, and transferred to him all of said account, and delivered the book as the voucher and evidence thereof. It appears from Markey’s request to find, that his claim of a sale and transfer to him is based upon the transaction at the bank detailed above. He claims that she then and there transferred her account from herself individually to herself as trustee for him, and that she thereby intended to create and consummate a trust in his favor.
To create a trust it is necessary that there should be an intention on the part of the donor to part with all interest in the subject of the trust, and to vest the title in another by-some act sufficient to pass the title. The question of intent controls. In Weber v. Weber, 58 How. Pr. 256, where a depositor in a savings bank opened several accounts in his' name in trust for his children, but did so only in order to receive the highest rate of interest, and without any intention of parting with the ownership of the money, or of making a gift or transfer of it to his children, it was held by the supreme court (Van Vorst, J.) that no trust was established. The court said that the question