
    Perry Dickie, Plaintiff, v. Helen D. Adams and David I. Reynolds as Administrators, Etc., of Serena D. Turell, Deceased, Defendants.
    (Supreme Court, Kings Trial Term,
    February, 1903.)
    Trust in personalty — Savings bank deposit — Proof of trust — Intention to create.
    Proof, by a transcript thereof, that a woman, who died in 1898, had, in 1880, a savings bank account which ran “in trust” for the plaintiff, and that, in 1882, the deposit was drawn out by a check, signed by her as an individual, referring to the savings bank-book by its number and payable to a third person, does not show that she created a trust for the plaintiff in the deposit, which sum is not
    
      •it
    
    a part of her estate, where there is no evidence that she herself made the deposit, or ever declared an intention to create such a trust, or ever had the savings bank-book,-and where all the evidence in the matter comes from an official of the bank who did not become such until many years after the deposit and its withdrawal.
    Action to recover a sum of money.
    John H. Parsons, for plaintiff.
    Louis B. Adams, for defendants.
   Forbes, J.

This is an action brought against the representatives of Serena D. Turell, deceased, to recover the sum of $1,537.02, and interest from the 2d day of October, 1882. This fund represents two deposits, amounting to $1,400, and the interest thereon $137.02, alleged to have been withdrawn by the deceased from the Irving Savings Institution, located at 96 Warren street, Hew York. The action is based upon the theory that the defendants’ intestate in making said deposits created a trust in favor of the plaintiff. On the trial a jury was waived, and the action was tried before the court.

The evidence shows that an account was opened in said bank on the 8th day of January, 1880, by the deposit of $1,000. The second deposit was made on the 1st day of July, 1880, of $400; the balance of the account represents accrued interest. It is undisputed that the account was opened in the name of Serena D. Turell, in trust for Perry Dickie, and that the account was closed by the personal check of Serena D. Turell, dated July 2, 1882. The check was made payable to the order of Jas. E. Carpenter, or bearer, and states that it is for the balance of money due on book 32,371. The check is signed by the defendants’ intestate individually.

On the trial the plaintiff’s attorney called the present secretary of said institution — the witness Lattimer — whose connection with that institution commenced in 1893. His evidence shows that all he knows about the transaction itself is that the books of the bank show the account from which he produced a transcript, which was offered and received in evidence without objection. He also produced on the trial pass-book Ho. 32,371, which was offered for identification, and was subsequently sought to be introduced in evidence, but was excluded by the court under the plaintiff’s exception. There is no evidence that the defendants’ intestate herself deposited said fund, or that she ever received or was in possession of the pass-book; and the case is barren of evidence tending to show that she intended to, or in fact ever did, create the trust suggested by the complaint.

It is held in Farleigh v. Cadman, 159 N. Y. 169, that “A gift, whether in the form of a trust, or otherwise, always involves the intention of the-donor.”

I do not think there is anything in the present case which warrants this court in holding that the evidence introduced on the part of the plaintiff is sufficient to create an inference that a trust was ever intended by the defendants’ intestate. The evidence shows that she, at times, had several different accounts in the bank in different forms. . The evidence of the witness Lattimer shows that the persons in control of said institution, the clerks and bookkeepers thereof at that time, are either dead or that the residences of those living are unknown to him, and that none of them have any present connection with the bank.

It is claimed by the plaintiff’s attorney that the receipt of the transcript of the account furnished, and the subsequent drawing of the check by the decedent, are sufficient evidence that the deposits were made by the defendants’ intestate, and that the trust was created by her. . The transcript of the account and the account itself are simply the declarations of the bank or its bookkeeper. There is no explanation of how the deposits were made, by whom they were made, nor is there any evidence that the deceased ever had in her possession the pass-book, marked for identification, or ever saw the account.

To establish a trust in favor of a living person as against the deceased, the evidence should be clear and convincing, • disclosing the intention to create a trust, or such circumstances should be pointed out as would clearly show the intention to create the trust. Beaver v. Beaver, 117 N. Y. 421; Robinson v. Carpenter, 77 App. Div. 520.

Hor do I think it can be inferred from the check introduced in evidence that such trust was created, or that the funds sought to be recovered ever passed into the possession of the deceased or formed any part of her estate. The check is made, payable to Jas. E.- Carpenter, and the body of the check is evidently written in some hand other than that of the deceased and is indorsed Jas. E. Carpenter,” apparently in the handwriting of the person who drew the body of the check.

The only identification, and therefore the only evidence in the case that the check was drawn against this account is a reference therein to the number of the pass-book and that the account was closed on the 2d day of October, 1882. The check bears date July 2, 1882. The deceased was a widow, living at the Park Avenue Hotel, in the city of Hew York, at the time of her death, and had been residing there for many years prior thereto: There is no evidence which identifies Carpenter, the indorser of the check. Presumptively the fund went into his hands. There is no evidence that he turned it over to the deceased.'

If there is any declaration made by the deceased which serves any purpose, her signature to the check is a repudiation of the idea that she ever created a trust or knew that one had been created; but, on the contrary, it remains a declaration that she did not so regard it; that it was never her intention to create a trust in favor of the plaintiff, and that the bank officers so understood that fact and accepted her personal check.

I am aware that it has been held by the learned Appellate Division that When money is deposited in the name of the depositor in trust for another, even though the latter is not notified of such deposit and the depositor keeps the pass'book, the deposit creates an irrevocable trust-in favor of the beneficiary, which trust cannot be defeated by the depositor afterward withdrawing the money.” Jenkins v. Baker, N. Y. L. J., Dec. 16, 1902; S. C., 77 App. Div. 509.

The facts in this case do not warrant the conclusion reached in that case, nor does the plaintiff bring the present action within that case. The burden of proof is upon the plaintiff, first, to show clearly the deposit and the creation of the trust by the declaration of the depositor,— not of the bank officers;. second, that the fund so withdrawn by the depositor forms a part of the assets and went into and forms a part of her estate.

The evidence is clearly insufficient to show these facts, and while certain inferences, perhaps, may be properly drawn, those inferences in this case do not amount to evidence of the necessary facts to permit the plaintiff to recover. Cunningham v. Davenport, 147 N. Y. 43, approved in Matter of Biggars, 39 Misc. Rep. 426.

The evidence discloses that the alleged trust was not communicated to the plaintiff, and that he knew nothing about the deposit until about the month of March, 1902 — nearly twenty years after the money had been withdrawn. The defendants’ intestate died on the 21st day of May, 1898. I do not think it is necessary to examine the defense of the Statute of Limitations.

The complaint must, therefore, be dismissed, with costs.

Complaint dismissed, with costs.  