
    (107 App. Div. 331.)
    In re BULWINKLE et al.
    (Supreme Court, Appellate Division, Second Department.
    August 31, 1905.)
    Trusts—Deposit in Bank.
    D. deposited money in a savings bank in the name of “D., in Trust for L.” Without being informed thereof, L. predeceased D. Thereafter D. continued to make deposits in the account, and stated to some person that the children of L. had money in the bank, that it was in trust for their mother, but that they would eventually get it. Before the death of D. the words “in Trust for L.” in the bank book were obliterated. Held, that the tentative trust came to an end with the death of L., and that there was no trust for her children.
    [Ed. Note.—For cases in point, see vol. 47, Cent. Dig. Trusts, § 44.]
    Hirschberg, P. J., dissenting.
    Appeal from Surrogate’s Court, Kings County.
    In the matter of the judicial settlement of the account and proceedings of John M. Bulwinkle and another, executors of Mary Ann Dugard, deceased. From a decree (87 N. Y. Supp. 250) settling the accounts in relation to a savings bank account, the Methodist Episcopal Hospital appeals.
    Reversed.
    
      Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, RICH, and MILLER, JJ.
    George S. Ingraham, for appellant.
    Lewis L. Fawcett, for respondent.
   WOODWARD, J.

Mary Ann Dugard, the decedent, deposited in the Williamsburgh Savings Bank, on or about January 29, 1890, certain moneys in the name of “Mary Ann Dugard, in Trust for.Lillie M. Lahey.” There is no evidence that the said Lillie M. Lahey was ever informed of this deposit, or that she was ever given the bank book, or that any act on the part of the decedent in reference to this deposit ever came to the knowledge of the beneficiary named. With the deposit standing on the books of the bank as above stated, the said Lillie M. Lahey died on the 80th day of March, 1892, leaving her mother, the said Mary Ann Dugard, her surviving. Subsequent to the death of the said Lillie M. Lahey, Mrs. Dugard continued to make deposits in the account “in trust for Lillie M. Lahey”; such deposits aggregating $525. It appears from the evidence that, when the bank book came into the possession of the executors of Mary Ann Dugard, the words “in Trust for Lillie M. Lahey” were obliterated by pencil marks, and it was only when a demand was made upon the Williamsburgh Savings Bank for the amount of the deposit that it became known that the account upon the books of the bank was in the form of a trust. The Methodist Episcopal Hospital and the Brooklyn Methodist Episcopal Church Home, residuary legatees under the will of Mary Ann Dugard, appeal from the decree of the learned Surrogate, which holds as a matter of law that the moneys so deposited in said account prior to the death of said Lillie M. Lahey became her property and form part of her estate, and that the moneys so deposited after the death of said Lillie M. Lahey became the property of the children of said Lillie M. Lahey.

We fail to find in the record before us anything to justify these conclusions. The recent careful review of the authorities made by the Court of Appeals in Matter of Totten, 179 N. Y. 112, 71 N. E. 748, establishes the rule in this state that 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. Matter of Totten, 179 N. Y. 125, 126, 71 N. E. 748. In the case now before us there was no pretense that the depositor had ever notified the beneficiary, or that there was any act or declaration, aside from the mere form of the deposit, which indicated an intention of making an absolute, irrevocable trust,- and, the beneficiary having predeceased the depositor, it follows that the tentative trust came to an end with the death of Lillie M. Lahey, and the fact that the bank book which came into the hands of the executors of Mary Ann Dugard was altered, by obliterating the words “in Trust for Lillie M. Lahey,” is persuasive evidence that the depositor so regarded the matter. “It may be justly said,” to quote the language of the Court of Appeals in Beaver v. Beaver, 117 N. Y. 421, 430, 22 N. E. 940, 942, 6 L. R. A. 403, 15 Am. St. Rep. 531, “that a deposit in a savings bank by one person of his own money to the credit of another is consistent with an intent on the part of the depositor to give the money to the other. But it does not, we think, of itself, without more, authorize an affirmative finding that the deposit was made with that intent, when the deposit was to a new account, unaccompanied by any declaration of intention, and the depositor received at the time a pass book, the possession and presentation of which, by the rules of the bank, known to the depositor, is made the evidence of the right to- draw the deposit. We cannot close our eyes to the well-known practice of persons depositing in savings banks money to the credit of real or fictitious persons, with no intention of divesting themselves of ownership. It is attributable to various reasons—reasons connected with taxation, rules of the bank limiting the amount which any one individual may keep on deposit, the desire to obtain high rates of interest where there is a discrimination based on the amount of deposits, and the desire, on the part of many persons, to veil or conceal from others knowledge of their pecuniary condition. In most cases where a deposit of this character is made as a gift, there are contemporaneous facts or subsequent declarations by which the intention can be established, independently of the form of the deposit. We are inclined to think that to infer a gift from the form of the deposit alone would in the great majority of cases, and especially where the deposit was of any considerable amount, impute an intention which never existed and defeat the real purpose of the depositor.”

If we are right in concluding that the tentative trust came to an end with the death of Mrs. Lahey, there can be no foundation for the further conclusion of law that the subsequent deposits in the same account became the property of Mrs. Lahey’s children. The deposits, both before and after the death of Mrs". Lahey, belonged to Mary Ann Dugard until she had finally disposed of them. They were at all times in her control, and, the pass book having been altered while in her possession, the account, as between the depositor and the children of Mrs. Lahey, was in the name of Mary Ann Dugard individually. There is not the slightest evidence to show that any deposit was made with an intention to transfer to Mrs. Lahey’s children the original or subsequent deposits, with the exception of an alleged statement by Mrs. Dugard to the effect that these children had a snug little sum in the bank, that it was in trust for their mother, but that they would eventually get it. This was not said to any one who had any control over the deposit. It was not a declaration of a present gift to the children, and the most that can be said for it is that it was some evidence that Mary Ann Dugard expected to turn the money over to them. But with the deposit belonging to her she died, and it seems clear that the fund in the Williamsburgh Savings Bank belonged to her estate, and not to the heirs of Lillie M. Lahey. .No title to the original deposit ever vested in Mrs. Lahey, and it is difficult to see how any title could flow to her heirs.

The decree of the Surrogate’s Court should be reversed, with costs.

JENKS, RICH, and MILLER, JJ., concur. HIRSCHBERG, P. J., dissents.  