56 A.D. 566 | N.Y. App. Div. | 1900
Augusta A. Meislahn’s action is brought against executors to obtain ten pass books in their possession, representing'$26,000 of deposits
The intention of the depositor is one of fact to be determined upon consideration of the facts and circumstances that marked the transaction. (Willimns v. Brooklyn Savings Bank, 51 App. Div. 332; Robertson v. McCarty, 54 id. 103.) On the facts, the question before us is whether the proof of the defendants so clearly preponderates that we reasonably can say that the trial court erred in its conclusion. (Stokes v. Stokes, 155 N. Y. 581, 591.) The terms of the deposit, after the name of the particular bank, were “ In account with Albert Meislahn, in trust for Augusta A. Meislahn,” and the depositor died leaving the account open and unexplained. And so the plaintiff comes with an unequivocal declaration of trust in her favor, expressed in the language of the deposit. (Williams v. Brooklyn Savings Bank, supra, and authorities cited; Harrison v. Totten, 53 App. Div. 178; Robertson v. McCarty, supra) The defendant executor, Albert Meislahn,' examined on plaintiff’s behalf, testified that between 1896 and 1900 he had several conversations with his father, the testator, who told the witness that “ he had money in trust for the girls.” This is a declaration of intent that strengthens the plaintiff’s case. (Cunningham v. Davenport, 147 N. Y. 43; Mabie v. Bailey, 95 id. 209.) A discrimination was made in favor of this plaintiff, who had been the caretaker of the testator for sixteen years, against the daughter Mrs. Pirnie by some $9,000, and against the daughter Mrs. Schuleman by some $12,000. The first one of these trust accounts was opened in 1871 by the deposit of $5 of the plaintiff’s own money. There were no similar trust accounts opened in favor of any of the three sons, save that there was a small amount once deposited in Henry’s name, which was taken out within the year.
To overthrow the case of the plaintiff the defendants rely mainly
The learned counsel for the appellants urges that the accumulations of Interest, both on the testator’s individual accounts and on the accounts in suit, were deposited by the testator in his business account in the Union Trust Company, indiscriminately (“where they drew %% interest on daily balances ”), and on the arrival of a new interest-bearing period in the savings banks, such accumulations were redeposited in the savings banks, and that when the rate of interest in the trust company was reduced, he drew therefrom to swell the various accounts in the savings banks. Even • so, this is but evidence that the individual and the trustee, as well, manipulated both his own money and the trust money so as to obtain the largest, gains. Bow the times named by the learned counsel for advantageous deposits in savings banks are January first to tenth, April first to third, July first to tenth and October first to third, and it appears that the account of the testator in the said trust company showed these successive balances, namely : 1897, July 30, $15,548; December 6, $15,880; 1898, February 2, $24,102; August 5, $27,065; 1899, February 24, $28,500. This does not sustain the appellant’s theory. But in any event, neither the retention of the pass book nor" the drawing of the interest detracts from the character in which the testator held these deposits, or “ throws light ” on the original'transaction. (Willis v. Smyth, 91 N. Y. 297, 300; (Robertson v. McCarty, supra, and authorities cited.)
The cases of Pirnie and Schuleman against these defendants, which were argued at the same time, present similar features, save that they are strengthened by the sister, Augusta Meislahn, who, in the first case named, testified that on one occasion, when her father was “ fixing the interest,” she saw the deposit books in his possession in his house. He said: “ This money I have in trust for you girls, but you cannot get it now, and when I am dead nobody can get this but you.” She further testified that she had seen the books about twice a year, and that she had seen them shortly before her father died. This testimony was substantially repeated in the second case, with the additional statement that the witness had seen the books in July, 1899. The exception to this testimony as incompetent, under section 829 of the Code of Civil Procedure, is not well taken. The evidence was not offered on her behalf or in her interest. The defeat of the plaintiffs meant the increase of the estate to her benefit as one of the general devisees under the will. The fact that she had a separate action against the defendants in which she sought to establish her title to certain other bank books did not place her within the prohibition of the statute. (Rix v. Hunt, 16 App. Div. 540, 549, and authorities cited; Baxter v. Baxter, 13 id. 65, 67.)
The judgments must be affirmed.
All concurred.
Judgments affirmed, with costs.