3 Bradf. 386 | N.Y. Sur. Ct. | 1855
William Witzel on the 25th day of June, 1849, deposited in the Greenwich Savings bank, the sum of five hundred dollars, and on the 3d of March, 1853,. withdrew four hundred and ninety-five dollars—on the 27th of
The want of knowledge of the existence of the trust on the part of the cestui que trust, is no ground of objection against its validity. Nor is the mode of its creation material, provided we can see the elements essential to a legal or equitable right. There would seem to be no reason, in the nature of things, why a trust cannot be created by a mere declaration, the transfer, change or mutation of possession being effected by the change of the character in which the property is held. There can be no doubt in this case that there was a delivery of possession—the funds were deposited in the bank, and ceased to be the intestate’s property—his individual possession terminated, and although it is true that he still retained the evidence of the trust, and the control over the deposit, it was in the new character of trustee. Nor had the transaction been conducted with entire privacy, for although the book was retained in his own custody, the deposit in trust was recorded on the books of the institution. It was not an act resting merely in intention, but was consummated
The class of deposits in savings institutions, of which the one in question in the present case is an example, is of frequent occurrence. This is a favorite mode of making trusts, and yet they are not ordinarily considered as irrevocable. The withdrawal by the intestate of a large portion of the deposit he made in trust for his sister, and of the interest as it accrued semi-annually, indicates that he did not treat the trust as connected with the deposit, to be irrevocable. Justice Story lays down the rule that “ where a trust is created for the benefit of a third person, although without his knowledge, he may afterwards affirm it and enforce the execution of it in his own favor, at least if it has not in the intermediate time, been revoked by the person who created the trust.” (Eq. Jurisp., § 972, 1045.) The doctrine, even in relation to assignments for the benefit of creditors, is, according to the English rule, that the assignment is revocable by the debtor unless the creditors have assented and given notice to the assignee, but by the American rule the assent of creditors is