
    Beakes Dairy Company, Appellant, v. William G. Berns, Respondent, Impleaded with Charlotte Berns, Individually and as Administratrix, etc., of William H. Berns, Deceased, and Samuel Wilmarth, Defendants.
    Second Department,
    October 16, 1908.
    Trust—deposit of money in trust for another — rights of creditors of depositor.
    Although a tentative trust is created where one deposits his own money in a savings bank in trust for another and the gift is consummated by the death of the depositor without revocation, the money may nevertheless be reached by creditors where the estate of the depositor is insufficient to pay debts, for one cannot place his property beyond the reach of creditors by such deposit any more than by a will.
    Appeal by the plaintiff, the Beakes Dairy Company, from a judgment of the Supreme Court in favor of the defendant, William G. Berns, entered in the office of the clerk of the county of Kings on the 28th day of April, 1908, upon the decision of the court rendered after a trial 'at the Kings County Special Term.
    The action is by a creditor of William H. Berns, who died intestate, against his administrator, and his son, the only other creditor of the deceased, and the Dime Savings Bank of Brooklyn, to have certain money-deposited in the said savings bank in the name of the deceased in trust for the said son applied to the payment .of the said debts of the deceased, the estate being insufficient without the same. The deposit was of $3,000. The deceased kept the bank book,- and drew out and used money from time to time during his lifetime.
    
      E. Walter Beebe [C. W. Bennett with him on the brief], for the appellant.
    
      James A. Sheehan, for the respondent.
   Gaynor, J.:

It is now settled in this state that the mere fact of one depositing his own money in his-own name in trust for another in a savings bank does not prove a trust, the act being equivocal, i. e., as com sistent with some other intention, and therefore not probative of a trust; - but that if the depositor happen to die on the way home, or at any time while the deposit account stands, then it is a trust, and a completed gift to the person named as cestui is made out. “ When a deposit is made in trust and the depositor dies intestate leaving it undisturbed, in the absence of other' evidence the presumption seems to arise that a trust was intended in order to avoid the trouble of making a will “ 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 ” (Matter of Totten, 179 N. Y. 112). It seems that the accident or fact of death turns that which may not have been and could not be found to be the intention of the deceased into his intention. But the gift is completed only, at the instant of death. Up to that time the money is that of the depositor to draw out and do with it as he pleases. That being so it must be subject to his creditors during liis lifetime, and for the same reason after his death also. One may no more get liis, money out of reach of his creditors after his death by depositing it in such a way, not to belong to his cestui until he dies, than he could do so by means of a will giving it to such cestui. His right to the absolute disposition of it during his lifetime makes it his and therefore subject to liis creditors. As was said in a recent ease, “ as to my creditors, property is mine which becomes mine for the asking, and no words can make an instrument strong enough to hold it for me and keep it from them ” ( Ullman v. Cameron, 186 N. Y. 339). This was said, it is true, of a pretended trust provision for another in a will, but has just as strong an application to a scheme by which one tries to so fix his property that he may have the'absolute control and disposition of it up to the time of his death, but keep it away from his- creditors. The deceased did not even have to ask anyone; the money was in his own control.

Ho objection is 'made to the form or maintainability of the suit.

The judgment should be reversed.

Woodward, Hooker, Rich and Miller, JJ., concurred.

Judgment reversed on question of fact and of- law, and new trial granted, costs to abide the event.  