
    William Haux, as Executor, etc., of William Haux, Deceased, and Others, Respondents, v. The Dry Dock Savings Institution and Others, Defendants; John T. Downing, as Administrator of Rose Downing, Deceased, and Others, Appellants.
    
      Sewings hanb deposit in trust—whether it constitutes a trust depends upon the intentian of the depositor at the time of the deposit.
    
    The question whether or not a trust in personal property is created by a donor when he opens an account and makes deposits in a bank, where the trust is sought to be established by proof of such acts on his part, depends upon his intention at the time.
    The question as to the creation of a trust under such circumstances is one of fact , which is to be determined in each particular case from the acts and declarations of the parties and from the circumstances surrounding the transaction at the time of the performance of the several acts.
    In an action brought to obtain an adjudication, whether certain deposits made by William Haux, deceased, constituted a trust, it appeared that on the 3d day of January, 1870, he deposited with the Dry Dock Savings Institution the sum of ten dollars, "in trust for Rosa, Charles and Henry Haux,” who were his children; that he subsequently made other deposits amounting at the time of his death to §3,000; that these children died during his lifetime, but that after their death he continued to make use of the same account; that originally the account consisted of the savings of all his children, including two not named in the account, but that after 1886, and when his account in another savings bank had ■reached §3,000, he began to deposit all his profits in the Dry Dock Savings Institution; that he always retained control of the moneys; on one occasion withdrew a part, and that upon the same day when the account in question -was opened, he had opened another account in the same institution entitled “ William Haux, in trust for William Haux,” and that he had delivered the pass book of this account to his son, William Haux, Jr., who always retained its possession.
    
      Meld, that there was no intention upon the part of the depositor to create a trust in respect to the balance of the account in question which remained in the bank at the time of his death.
    Appeal by the defendants, John T. Downing, as administrator of Rose Downing, deceased, and others, from a judgment of the Superior Court of the city of New York in favor of the plaintiffs, entered in the office of the clerk of said court on the 16th day of July, 1895, upon the decision of the court rendered after a trial at a Special Term thereof.
    
      This action was 'brought to obtain an adjudication as to whether or not certain deposits made -by William Haux, deceased, with the Dry Dock Savings Institution constituted a trust or trusts, and also to have determined the rights and interests of all the parties to this action in the fund created by said deposits, and to have the defendant,. the Dry Dock Savings Institution, ordered and directed to deliver said fund in accordance with the decision in the premises.
    On the 3d day of January, 1870, William Haux, deceased, the 'father of Rosa, Charles and Henry Haux, deposited with the Dry Dock Savings Institution the sum of ten dollars “ in trust for Rosa, Charles and Henry Haux,” and subsequently the said William Haux, deceased, made other deposits, which, at the time of his death (October 1, 1894), amounted to the sum of $3,000.
    All the alleged beneficiaries died during the lifetime of William Haux, the father, and it appeared that before the death of any, after the death of each and after the death of all, deposits were made in this account. It also appeared that the deposits in this account changed in nature and extent during the year 1886. ' Until that time the deposits were made up of the savings of the children of William Haux, including the savings of Mina and Katharine ' Haux, neither of whom is mentioned among the alleged beneficiaries. After and during 1886, the deposits were of greater amounts, and these amounts were drawn from and comprised the entire profits of the business of William Haux, the father. '
    William Haux had an account in his own name in the German Savings Bank, in which it was his custom to deposit the profits of his business, and'he continued to do so.until the deposit reached $3,.GOO -; thereafter, and in August, 1886, he began to make the deposit of profits in the Dry Dock Savings Institution above referred to.
    From 1870 until the death of the said William Haux, the .pass books of this account in dispute always remained in his possession or subject to his control, and on one occasion he withdrew $197.36 from the account, thereby reducing the amount of money therein to the $3,000 limit.
    On the same day when the account in dispute was opened William Haux opened another account in the same institution, “ William Haux in trust for William Haux,” and the pass book of this account was delivered to William Haux, Jr., his son, and always remained in his possession or subject to his control.
    It was shown that William Haux, the father, was a German, never associating with Americans, and reading and writing English very poorly. His family worked for him, receiving no stated salary, and everything in connection with his business was under his immediate supervision and control.
    When Henry Haux, one of the alleged beneficiaries, died, his father, William Haux, administered'upon his estate, which amounted to about $250.
    It was shown that when William Haux, Sr., made arrangements to have his will drawn, he stated to the person who drew his will that he had money deposited in the German Savings Bank and the Dry Dock Savings Institution, and it was further shown that William Haux, Sr., had no account in the Dry Dock Savings Institution except this alleged trust fund and the deposit made in trust for William Haux, Jr.
    . Hector M. Hitchings, for the appellants.
    
      Joseph Rowan, for the respondents.
   Per Curiam :

The rule now established in this State is that whether or not a trust was created depends upon the intention of the donor at the time of the opening of the account and of the deposits made in the bank, and that question is a question of fact to be determined in each particular case from the acts and declarations of the parties and the circumstances surrounding the transaction at the time of the performance of the several acts. . (Cunningham v. Davenport, 147 N. Y. 43.) W e think it clear in this case that there was evidence before the trial court to sustain his findings; that there was no intention upon the part of the depositor to create a trust in respect to the balance remaining in bank at the time .of his death, and that that finding should not be interfered with on appeal.

The judgment, therefore, should be afiirmed, with costs.

Present — Van Brunt, P. J., Williams, Patterson, O’Brien and Ingraham, JJ.

Judgment affirmed, with costs.  