Jenks, J.:
On May Y, 1894, William Williams deposited $2,Y00 in the Brooklyn Savings Bank in these terms, “ William Williams, in trust for Owen Williams,” and died in March, 1896, leaving this account-open. Owen Williams sued to establish, the trust, and appeals here from a judgment of the Special Term directing the defendant, the Brooklyn Savings Bank, to pay to the administrators of William Williams, deceased, the money to the credit of the account.
The precedents are clear and cogent that this language of deposit was a plain declaration of trust in favor "of' Ow.en Williams. (Martin v. Funk, 75 N. Y. 134; Boone v. Citizens’ Savings Bank of New York, 84 id. 83 ; Willis v. Smyth, 91 id. 297; Mabie v. Bailey, 95 id. 206 ; Cunningham v. Davenport, 147 id. 43; Decker v. Union Dime Savings Institution, 15 App. Div. 553.)
The learned justice presiding at Special Term filed his decision that “ from the facts and surrounding circumstances proved in this case, I find that William Williams never intended to create a trust for the benefit of his brother, Owen Williams, the plaintiff herein, when he opened the account in suit; and, in fact, that no such trust ever was created.” He held that “ there was no formal, technical declaration of trust, which, standing alone, did, as matter of law, create a trust. The form in which the deposit was made, the money being the depositor’s own, is only a circumstance equivocal at best, [334]*334to be considered in connection with the accompanying circumstances in determining, as matter of fact, whether a trust was intended.”
But in Decker v. Union Dime Savings Institution (supra), this court,, considering substantially similar language—“ William F. Du Bois, trustee for Ellen ora H. Decker ” — used under similar circumstances, said, per Hatch, J.: “ It constitutes an unequivocal declaration of trust in favor of the beneficiary.” In this case the death of the depositor and the life of the beneficiary are admitted. If the plaintiff had read in evidence this declaration of deposit, .the law would thereupon have raised the presumption that there was a plain declaration of trust for him, and if no further evidence had been adduced for, or against, the plaintiff, he would have made a prima facie case. The application of such a presumption is stated by Prof. Thayer in his book upon Evidence (p. 315): “ The questu n of intention is not closéd to evidence by this rule,— the matter lies wholly open ; but, in applying the law, a certain prima facie effect is given to particular facts; and it is not merely given to them once, by one judge on a single occasion, but it is imputed to them habitu-, ally, and by a rule that is followed by all judges and recommended to juries, aud even laid down to juries as a binding .rule of law.”
This declaration might have been, or might not have been conclusive, for it is but evidence of the intent to create such a trust, inasmuch as divers motives might have dictated such a deposit. Therefore, the intention of the depositor is a question of fact to be determined upon a consideration of the facts and circumstances that marked the transaction. ,(Decker v. Union Dime Savings Institution, supra.) The theory of the case is tersely put by Hirschberg, J., in an opinion adopted by this court in Board of Missions v. Mechanics' Savings Bank (40 App. Div. 120, 123): “ The cases all turn on the question of intent, which, in the absence of other explanation, is controlled by the term's of the deposit.” Even if it be true that the language of the deposit raises but a presumption, that is, it but presupposes a certain fact, namely, that at the time of the deposit there was made a plain declaration of trust in favor of the beneficiary named, which is to be considered with the other facts, yet the plaintiff was entitled to the full value of this fact. The depositor died before the beneficiary named,- and left the account open and unexplained. U]3on weighing the evidence, the learned court should have [335]*335cast into the scale of the plaintiff this unequivocal declaration of trust. This it did not do, for it has held that “ the form in which the deposit was made, the money being the depositor’s own, is only a circumstance equivocal at. best.” Therefore, in this review, we must first restore the full value that the law gives to this declaration, and then consider the whole case presented upon the appeal. The facts are not in dispute. William Williams appears as a frugal old man, lodged for $6 a month, fed at eating houses and supported by the income of the accumulations of a thrifty life. He left a property of about $20,000, exclusive of the deposit in question, and also of another deposit of $3,432. His kindred were a younger brother — this plaintiffs a married daughter, and a grandson, the son of a dead daughter. This plaintiff, .who was well on in years and crippled, lived in England, and earned about twenty-three shillings a week for the. support of his family. The relations of the brothers were very friendly. They corresponded (not frequently, for the plaintiff seems to have been rather illiterate and to liqve been troubled with his eyes), and William told the witness Clark that he was accustomed to send newspapers to Owen every week. To this witness, his intimate friend of thirty years’ standing, he spoke of Owen as a sufferer from misfortune and as a subject for pity. Occasionally William sent to Owen sums of four or five pounds sterling. At one time, about a year before he died, he remitted $100. The testimony shows that William Williams and his daughter were estranged. To Clark he forbade any mention of her name. When he was very ill, and was told that the end was near, he was asked if he did not wish to see his daughter, whereupon he answered, “ No, don’t bring her near me.” But he took a lively interest in his grandson, a young man of twenty-one years of age, and showed affection for him. In January, 1894, he had made a deposit of $1,379, in the Brooklyn Savings Bank, in terms as follows : “ William Williams, in trust for William F. Hallett>” which was, at his death, open and unexplained. We think that his circumstances, his' surroundings, his affections and his antipathy are all consistent with an intent to make beneficiaries of tiie two persons that are named in these respective declarations of trust. If his affection pointed them out, his judgment as well might have told him that one was needy and both were deserving. So far as his personality is shown [336]*336by the evidence, his action, now under review, was 'characteristic. For the fashion of it still left the money under his eye, and, in a sense, under his control as trustee, while none about him was the wiser, either of his act or of his accumulations. When he died, his brother and his nephew,, those whom he loved best, would learn that he had not forgotten them, for there were the trusts in the bank, that he had created, and that he would leave behind him.
Certain circninstances are relied upon by the defendant bank to uphold the judgment. It' is urged that the depositor retained the pass book, but it must be remembered that the question is 'of a trust, not a gift, and that if the depositor were a trustee, he was the proper custodian. In Martin v. Funk (supra) the court, per Chubch, Ch. J., after deciding that the declaration was sufficient to pass the title, said : “ The retention of the pass book was not.
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Jenks, J.:
On May Y, 1894, William Williams deposited $2,Y00 in the Brooklyn Savings Bank in these terms, “ William Williams, in trust for Owen Williams,” and died in March, 1896, leaving this account-open. Owen Williams sued to establish, the trust, and appeals here from a judgment of the Special Term directing the defendant, the Brooklyn Savings Bank, to pay to the administrators of William Williams, deceased, the money to the credit of the account.
The precedents are clear and cogent that this language of deposit was a plain declaration of trust in favor "of' Ow.en Williams. (Martin v. Funk, 75 N. Y. 134; Boone v. Citizens’ Savings Bank of New York, 84 id. 83 ; Willis v. Smyth, 91 id. 297; Mabie v. Bailey, 95 id. 206 ; Cunningham v. Davenport, 147 id. 43; Decker v. Union Dime Savings Institution, 15 App. Div. 553.)
The learned justice presiding at Special Term filed his decision that “ from the facts and surrounding circumstances proved in this case, I find that William Williams never intended to create a trust for the benefit of his brother, Owen Williams, the plaintiff herein, when he opened the account in suit; and, in fact, that no such trust ever was created.” He held that “ there was no formal, technical declaration of trust, which, standing alone, did, as matter of law, create a trust. The form in which the deposit was made, the money being the depositor’s own, is only a circumstance equivocal at best, [334]*334to be considered in connection with the accompanying circumstances in determining, as matter of fact, whether a trust was intended.”
But in Decker v. Union Dime Savings Institution (supra), this court,, considering substantially similar language—“ William F. Du Bois, trustee for Ellen ora H. Decker ” — used under similar circumstances, said, per Hatch, J.: “ It constitutes an unequivocal declaration of trust in favor of the beneficiary.” In this case the death of the depositor and the life of the beneficiary are admitted. If the plaintiff had read in evidence this declaration of deposit, .the law would thereupon have raised the presumption that there was a plain declaration of trust for him, and if no further evidence had been adduced for, or against, the plaintiff, he would have made a prima facie case. The application of such a presumption is stated by Prof. Thayer in his book upon Evidence (p. 315): “ The questu n of intention is not closéd to evidence by this rule,— the matter lies wholly open ; but, in applying the law, a certain prima facie effect is given to particular facts; and it is not merely given to them once, by one judge on a single occasion, but it is imputed to them habitu-, ally, and by a rule that is followed by all judges and recommended to juries, aud even laid down to juries as a binding .rule of law.”
This declaration might have been, or might not have been conclusive, for it is but evidence of the intent to create such a trust, inasmuch as divers motives might have dictated such a deposit. Therefore, the intention of the depositor is a question of fact to be determined upon a consideration of the facts and circumstances that marked the transaction. ,(Decker v. Union Dime Savings Institution, supra.) The theory of the case is tersely put by Hirschberg, J., in an opinion adopted by this court in Board of Missions v. Mechanics' Savings Bank (40 App. Div. 120, 123): “ The cases all turn on the question of intent, which, in the absence of other explanation, is controlled by the term's of the deposit.” Even if it be true that the language of the deposit raises but a presumption, that is, it but presupposes a certain fact, namely, that at the time of the deposit there was made a plain declaration of trust in favor of the beneficiary named, which is to be considered with the other facts, yet the plaintiff was entitled to the full value of this fact. The depositor died before the beneficiary named,- and left the account open and unexplained. U]3on weighing the evidence, the learned court should have [335]*335cast into the scale of the plaintiff this unequivocal declaration of trust. This it did not do, for it has held that “ the form in which the deposit was made, the money being the depositor’s own, is only a circumstance equivocal at. best.” Therefore, in this review, we must first restore the full value that the law gives to this declaration, and then consider the whole case presented upon the appeal. The facts are not in dispute. William Williams appears as a frugal old man, lodged for $6 a month, fed at eating houses and supported by the income of the accumulations of a thrifty life. He left a property of about $20,000, exclusive of the deposit in question, and also of another deposit of $3,432. His kindred were a younger brother — this plaintiffs a married daughter, and a grandson, the son of a dead daughter. This plaintiff, .who was well on in years and crippled, lived in England, and earned about twenty-three shillings a week for the. support of his family. The relations of the brothers were very friendly. They corresponded (not frequently, for the plaintiff seems to have been rather illiterate and to liqve been troubled with his eyes), and William told the witness Clark that he was accustomed to send newspapers to Owen every week. To this witness, his intimate friend of thirty years’ standing, he spoke of Owen as a sufferer from misfortune and as a subject for pity. Occasionally William sent to Owen sums of four or five pounds sterling. At one time, about a year before he died, he remitted $100. The testimony shows that William Williams and his daughter were estranged. To Clark he forbade any mention of her name. When he was very ill, and was told that the end was near, he was asked if he did not wish to see his daughter, whereupon he answered, “ No, don’t bring her near me.” But he took a lively interest in his grandson, a young man of twenty-one years of age, and showed affection for him. In January, 1894, he had made a deposit of $1,379, in the Brooklyn Savings Bank, in terms as follows : “ William Williams, in trust for William F. Hallett>” which was, at his death, open and unexplained. We think that his circumstances, his' surroundings, his affections and his antipathy are all consistent with an intent to make beneficiaries of tiie two persons that are named in these respective declarations of trust. If his affection pointed them out, his judgment as well might have told him that one was needy and both were deserving. So far as his personality is shown [336]*336by the evidence, his action, now under review, was 'characteristic. For the fashion of it still left the money under his eye, and, in a sense, under his control as trustee, while none about him was the wiser, either of his act or of his accumulations. When he died, his brother and his nephew,, those whom he loved best, would learn that he had not forgotten them, for there were the trusts in the bank, that he had created, and that he would leave behind him.
Certain circninstances are relied upon by the defendant bank to uphold the judgment. It' is urged that the depositor retained the pass book, but it must be remembered that the question is 'of a trust, not a gift, and that if the depositor were a trustee, he was the proper custodian. In Martin v. Funk (supra) the court, per Chubch, Ch. J., after deciding that the declaration was sufficient to pass the title, said : “ The retention of the pass book was not. necessarily inconsistent with this construction, She must be deemed to have retained it as trustee. The book was not ■ the property, but only the voucher for the property which, after the deposit, consisted of the debt against the bank.” The respondent bank .also calls attention to the fact, upon which the learned justice seems to lay stress, that plaintiff was not notified of the deposit by the depositor. But knowledge of the beneficiary was not. essential. Moreover, there was no personal association of the brothers, for this plaintiff lived .across the sea. In Martin v. Funk (supra) the court also said : “In this case the intestate might have notified the objects of her bounty, but this is not regarded as indispensable by any of the authorities,” citing Richardson v. Richardson (L. R. [3 Eq. Cas.] 686). (See, too Van Cott v. Prentice, 104 N. Y. 56 ; Perry Trusts, § 98, and cases cited.) The respondent bank regards it as significant that. William Williams at about the same time made deposits in certain other accounts, respectively approximating $3,000. It appears that on the day of the deposit in question he had an account in the same bank of $3,172, and the third account entitled “ William Williams in trust for William F. Ilallett,” and that in the latter account he tlien deposited $1,521, making the total thereof $3,000. ' On the same day he also' opened an account of $2,415 in another savings bank in his own name.. It may be .assumed that the ■ deposits were the major part of ..the proceeds of certain mortgages called in. Inasmuch as the interest limit of this [337]*337bank was $3,000 it is argued from these facts that these accounts were opened to gain interest. But the argument at best is speculation upon a possible motive. There were other savings banks open to him. We have seen that on the same day the depositor made a deposit in' another savings bank, and this tends to refute inference of his ignorance of the existence of other banks or of his exclusion of them. Moreover, if he sought a scheme to gain interest, he could have deposited $3,000, instead of $2,700, in this particular account under discussion, out of the $7,482 received by him on that day. The argument based upon'a scheme for interest does not carry special force in any given case ; for it is available in every case where the depositor’s own funds in the same bank have reached the limit. It has not received much consideration where the depositor has named a beneficiary of the trust. (Mabie v. Bailey, supra, 206, 210, 211; Decker v. Union Dime Savings Institution, supra, 555.) The withdrawals, within a year after the deposits, amounting to $105, are hardly a legitimate part of the res gestee, for at most they would indicate a change of purpose and not the original intent. (Mabie v. Bailey, supra, 206, 211; Hyde v. Kitchen, 69 Hun, 280.) None of the cases cited by the learned counsel for the respondent applies. In Cunningham, v. Davenport (supra) and Haux v. Dry Dock Savings Institution (2 App. Div. 165) the respective depositors survived the respective beneficiaries named, and denied the trusts. In Matter of Mueller (15 App. Div. 67) there was a clear admission, against interest, of the purpose of the deposit. In Beaver v. Beaver (117 N. Y. 421) it was held that the title turned upon a gift rather than upon a trust. (See Cunningham v. Davenport, supra, 47.)
Upon a careful examination of all the facts, we are constrained to hold that the decision is against the weight of evidence, that the judgment should, therefore, be reversed, and that a new trial should be ordered, costs to abide the final award of costs.
All concurred.
Judgment reversed and new trial granted, costs to abide the final awai’d of costs.