103 N.Y.S. 499 | N.Y. App. Div. | 1907
On March 24, 1903, Peter B. Turnbull, the plaintiffs’ intestate, received from the Fultonville National Bank a certificate of deposit, of which the following is a copy:
“ The Fultonville National Bank.
“No. 10387. $100.
“ Fultonville, N. Y., Mar. 24, 1903.
“ This certifies that P. B. Turnbull has deposited in this bank One Hundred Dollars payable to the order of himself or Geo. H. Turnbull on the return of this certificate properly endorsed.
O. F: CONABLE, Cashier.”
On June 13, 1903, the said deceased received from said bank another certificate of deposit for the sum of fifty dollars and on
Deceased and the defendant were brothers. The deceased began making deposits in the bank several years before his death when lie was residing with the defendant. The cashier of the bank testified that when the first deposit was made the deceased stated that lie wanted it arranged so that he could use the money in his lifetime and what he should have, left when he died he wanted his brother George to have. At the suggestion of the cashier a certificate was issued to the deceased in the form above indicated to carry out the declared purpose of the deceased as thus expressed. Thereafter from time to time the deceased made additional deposits and withdrew some of the money deposited and received from the- bank new certificates all in .the form indicated until his transactions with the bank resulted in the three certificates of • deposit which are the subject of this controversy.
The learned county judge has found as a fact on sufficient evidence “ that said certificates were and each of them was made payable as aforesaid by the. request, and direction of said deceased with the intent that in'case said certificates were outstanding at the time of his death and the defendant survived him, said certificates and the proceeds thereof should belong to the defendant and with the intent to give said certificates to the defendant in case lie survived the deceased and for the purpose of effectuating such intent and for no other purpose.”
In Sullivan v. Sullivan (161 N. Y. 554) facts were proved very similar to the facts here established. In that case a certificate of. deposit was received payable to the order of the depositor “ or in the case of her death to her niece-Catherine Sullivan.” The court said: “There was no intention either expressed in terms or to be-implied from the nature of the transaction to immediately transfer
When that case was before this court (39 App. Div. 99) there was an intimation that “ if the certificate had provided that the sum deposited should be payable to deceased or the defendant,” there might have been a valid trust, on the theory that the contract between the depositor, and the bank, when the fund was deposited, would have indicated that an interest in such fund was at once created in favor of the donee. The case of McElroy v. National Savings Bank (8 App. Div. 192) was cited in support of that proposition.
If in the present case it appeared that it had been the purpose of the deceased when he made the deposits to vest in the defendant an-immediate interest therein, perhaps we should hold, as intimated by this court in the Sullivan case, that a valid trust had been created for the benefit of the defendant. But such theory is opposed to the facts as found by the learned county judge. It is also contrary to the declared purpose of the deceased to the cashier of the bank when the first deposit was made that “he wanted it so that he could use it in his lifetime, and what he should have left when he died he wanted his brother George to have.” And the trial court has found that the certificates were issued in the form in which they appear
The judgment must be reversed and a hew trial granted, with costs to the appellant to abide the event.
All concurred.
Judgment reversed on law and'facts and new trial granted, "with costs to appellant to abide event.
