O'Brien v. Williamsburg Savings Bank

101 A.D. 108, 91 N.Y.S. 908

Opinion

Hooker, J.:

A reargument was granted in the case after the Court of Appeals reversed our decision in Matter of Totten (179 N. Y. 112, revg. 89 App. Div. 368). We affirmed, without opinion, on the first argument. (Coote v. Williamsburg Savings Bank, 92 App. Div. 613.) It was supposed that the rule the Court of Appeals laid down in Matter of Totten (supra) might affect the question in this case. In my opinion it did not. In that case (p. 125) the court soy's: “After much reflection upon the subject, guided by the principles ■established by our former decisions, we announce the following as ■our conclusion : A deposit by one person of his own money, in his ■own name as trustee for another, standing alone, does not establish an irrevocable trust during the lifetime of the depositor. It is a tentative trust merely, revocable at will, until the depositor dies or completes the gift in his lifetime by some unequivocal act or declaration, such as delivery of the pass book or notice to the beneficiary. In case the depositor dies before the beneficiary without revocation, or some decisive act or declaration of disaffirmance, the presumption arises that an absolute trust was created as to the balance on hand at the death of the depositor.” The point in the case at bar is that the deposit by the deceased, Mrs. Coote, of the moneys in the defendant savings bank did not “ stand alone.” The court has found on evidence, which, though slight, is sufficient, that “ before opening such account and making such deposit, said Ann Coote declared it to be her intention that the account and money should be for the benefit of Margaret Brown.” The appellant’s contention that the purpose of the depositor must be clear and unequivocal is the law; but Mrs. Coote’s statement that she wanted Margaret Brown to have the money and did not want her husband (Copte) to' get it, does not leave much room for doubt as to her meaning; especially when accompanied with the deposit, “In trust for Margaret Brown.” Her intention expressed without equivocation, coupled with the dejposit in the form in which it appears, created an irrevocable trust, and I advise affirmance, with costs.

Hirsohberg, P. J., Bartlett, Woodward and Jenks, JJ., ■concurred.

Judgment affirmed, with costs on reargument.