29 N.Y.S. 1012 | N.Y. Sup. Ct. | 1894
The appellant and the respondent Ella J. Williamson are the daughters of one Orange R. Young, deceased. The appellant was horn in 1848. She and her sister are the only issue of their father. Until their respective marriages, both resided with, and were supported by, their father. In 1886 their father remarried, and his widow survives him. While quite young, it appears that each of the children was possessed of a child’s savings bank, in which they placed the pennies and small change received from their parents and friends. In February, 1858, the appellant’s father opened an account in the Central Savings Bank of Troy, in her name, and received a pass bank book made out in her name, and from time to time deposited other money upon such account; and it appears that he took money from the child’s savings bank, and deposited it in said Central Savings Bank. He told her that he had started a bank account for her, and occasionally showed it to her, but never delivered the bank book to her, to keep herself. Deposits were made from time to time,—frequently of very small sums, such as might well be the savings of a child. He remarked, in referring thereto, that he “thought it was a good idea to have them save their pennies. They would be more apt to save their money when they grew up.” On or about August 12, 1864, on the birthday of the appellant, her father told her that he would give her a present of $100,
“This real-estate bond of $1,300 is for my daughter Amelia M. Millard. It is the money she had in the savings bank to her credit, which was put in the bank when she was small. I now put it in this form so that she can real'z.) more interest. At my death this is to go to her. This bond is dated April 1st, 1889.
“Troy, May 2nd, 1889. O. R. Young.”
The bond of $500 had a paper attached to it in the same words, excepting the description of the amount of said bond. The moneys received from time to time as interest upon such bonds were deposited by her father to the credit of the appellant, subject to his control, in the Central ¡National Bank, to the credit of the account already referred to. The $1,800 withdrawn from the accounts, and invested in the bonds and mortgages referred to,.was withdrawn and.was invested without the knowledge of the appellant. Orange R. Young died in March, 1892, leaving a will, wherein the respondents were appointed executors, and whereby he disposed of his es-
There is no conflicting testimony in the case. The only questions are those of fact arising from the different inferences to be drawn from the undisputed evidence in the case, and the questions of law arising therefrom. Various exceptions were taken by the appellant to the findings of fact and law, and the refusals to find, by the trial court. It will be only profitable, hxroever, to call attention to the three following requests to find matters of fact, to wit:
“Seventh. From the inception of said respective accounts until the death of said Young, March 14, 1892, said accounts were frequently discussed by and between plaintiff and said Young, and in the family of said Young, and said pass books were often seen, and occasionally examined by plaintiff, and that it was often and commonly stated by Young, and understood, that said accounts and books were the property of plaintiff, and by said Young held expressly for her, and were to pass into her possession and control at his death.”
The court modified such request to find by striking out the italicized words, and inserting instead the following:
“To belong to the plaintiff, and were to pass into her possession and control at his death.”
To which modification the appellant excepted.
“Eleventh. Said Young intended said accounts, bonds, mortgages, and fund to be, and he held and managed the same, solely and exclusively, for the benefit of this plaintiff.”
Which the court refused to find, to which the appellant excepted.
“Twelfth. Said Young' neither made, nor intended to make, any testamentary gift or disposition of said accounts, bonds, mortgages, or fund.”
WThich request the court likewise refused, and to which appellant excepted.
With great respect for the learned justice before whom the case was tried, it seems to me that he erred in the inferences of fact that he drew from the testimony in this case. Most of the facts, and the evidence thereof, were agreed upon between the parties. Some of the evidence was documentary. The oral testimony is very limited. So that I have less hesitation in differing from the trial justice, as to the facts, than I would in a case where all the facts are dependent, or largely dependent, upon oral testimony, where the trial court has an opportunity to observe the witnesses, their demeanor, and manner of giving testimony, which afford him greater facilities for arriving at a conclusion as to who is telling the truth, and as to what the real facts are, than are possessed by the appellate court, which does not see or hear the living witnesses. It ap
“It is the money she had in the savings bank to her credit, which was put in the bank when she was small. I now put it in this form so that she can realize more interest.”
This is a recognition that the money was, and had been for some period of time, her money,—not that she was to become the owner of it at some future time, but that she was then the owner of it.
This case differs in essential particulars from the case of Beaver v. Beaver, 117 N. Y. 421, 22 N. E. 940, and 137 N. Y. 59, 32 N. E. 998, and indeed from all the cases to which I have been referred, where moneys have been deposited in the bank by one person for the benefit of another. In the Beaver Case the father deposited his own money in the savings bank, in his son’s name, but retained possession of the bank book himself, and never spoke of it, or in any other way recognized it, as belonging to his son. The only sum that was thereafter drawn from the bank, until after the father’s death, .was drawn by the father himself. The son died about 20 years after the deposit was made, never having known anything about such deposit having been made in his name, and in the meantime having opened an individual account in the same bank in his own name; and it was held that these circumstances did not show a gift, or establish a trust for the benefit of the son. In the case before us the account was opened by a deposit composed entirely or in part of the accumulated savings of the appellant (then a child) of moneys which she had received from her parents and other persons. It was in her own name, not subject to the control of any one, and it remained so on deposit, without any limitation or restriction upon it, for a period of 20 years. It was so deposited with her knowledge. She saw the bank book from time to time. It was talked of, by her father, to her, and to and in the presence of the family and others, as her money. Her savings continued to be taken and deposited, from time to time, to such account. The money which had been given to her by her father and other persons before it was placed in the savings bank was hers. That stamped the character of the account, from the beginning, as an account composed of her money,—not money that was to be hers thereafter, but of money that was hers, and had been hers prior to its deposit. The money that was contributed thereafter by the father, by placing it in the bank without its previously going through her hands, constituted a gift to her. It became part and
It seems to me that in view of these decisions the trial court was in error in holding “that, to establish a trust, it must appear that no power is left in the settler to revoke it, or to defeat its effect by any
“These facts * * * confirm the proof furnished by the bank books and pass books of the creation of a trust, and exclude the supposition that the transaction was not intended to be that which the written evidence, unexplained, imports.”
“If the withdrawal was with the intent on his part to ignore the trust, and convert the money to his own use, it might be competent evidence of a change of purpose, but it throws no light on the original transaction.”
The withdrawal of a portion of the money deposited in this case, and investing it in bonds and mortgages, the title of which was taken in the name of Young, without the knowledge of the appellant, did not change the legal relation in the least, but coupled with the written declaration that he attached to them, and which I have before adverted to, rather strengthens the evidence of the relations between them, and containing an explicit declaration that the money with which the bonds were purchased belonged to the appellant, and that he had changed the investment, not for his interest, but for hers, that she might derive more interest, and this followed up by his subsequent acts in depositing the interest received upon the bonds and mortgages to her account, all furnish additional evidence that the money was the appellant’s, and that the control that he exercised over it was not that of one having or claiming title to it, but simply of one holding and managing it for her benefit The case of the bonds and mortgages in question here differs greatly from that of the bonds and mortgages' in question in the Crawford Case, 113 N. Y. 560, 21 N. E. 692, and the Wadd Case, 137 N. Y. 215, 33 N. E. 143. In the Crawford Case the bonds were purchased with the intended donor’s own money. He kept them in his own possession He drew the interest himself, and used it for his own benefit. There was never at any time any recognition by him that the money with which the bonds were purchased belonged to Mrs. Crawford, or that the.bonds were hers, but simply that he intended that they should be hers after his death. So, in the Wadd Case, the mortgage was purchased with the intended donor’s own money, and an assignment made out to the proposed beneficiary, but never acknowledged or recorded, but deposited with the testator’s own papers; and never at any time was there any statement that the money with which the mortgage was purchased belonged to the intended beneficiary, or that the mortgage itself belonged to her,—simply an intention that it should belong to her after his death. In both cases the beneficial interest in the bonds and mortgages was retained by the intended donors in themselves. They drew the income from them, for their own benefit, during their lives. Here, as we have seen, Young invested appellant’s money,— money that he avowed to be hers,—retaining no beneficial interest in it, or in the bonds and mortgages, for himself, but turned the income thereof into the account of the appellant. It seems to me, therefore, under all the circumstances, that the money deposited in both savings banks must be regarded as the appellant’s own money; that the gift thereof, so far as it was originally derived from her father, was completed by actual delivery,—some of it into her hands, the rest into her bank account, consisting of her money,— and that, as to the money that still remains in the0Savings bank, it