
    The Board of Domestic Missions of the Reformed Church in America, Respondent, v. Mechanics’ Savings Bank, Fishkillon-Hudson, New York, Defendant, Impleaded with James E. Dean, as Executor, etc., of Eliza Ann Crowther, Deceased, Appellant.
    
      Savings bank, deposit—an addition to the depositoiis name of the words* “ in trust for” the beneficiary creates a trust — effect of non-compliance with the rules of the bank
    
    A depositor in a savings bank, fearing that she would-not survive a surgical operation which she was about to undergo, instructed the cashier of: the bank to make the deposit books payable in trust for a certain religious corporation. The cashier made the following entry in the deposit books: “Eliza Ann Crowther (the depositor), in trust, for Board of Domestic Missions of the Reformed. Church in America” (the religious corporation), and transferred the- accounts on the books of the hank in the same manner. The deposit books were then returned to the depositor, who retained thein in her possession until lier death, -which occurred two weeks later, when the executor of the depositor returned them to the bank in accordance with a direction indorsed on the envelope in which the depositor had placed the deposit books. '
    
      Meld, that the transaction had the effect of changing the title to the moneys, and vesting it in the religious corporation;
    That the fact that the rules of the bank required a transfer of a deppsit to- be effected by a written order, signed by the depositor, and that the cashier of the bank told the depositor at the time she directed the transfer that he would have-such an order prepared for her to sign, and that such order was never executed, did not operate to defeat the trust,-as the order required was evidently intended simply for the protection of the bank, and did not affect the declaration, of trust made by the depositor
    Appeal by the defendant, James E. Dean, as executor, ¡etc., of Eliza Ann Crowther, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the qlerb of. the county of Dutchess on the 21st day of' November,. 1898, upon the decision of the court rendered after a trial at the Orange-Special Term
    
      Milton A. Fowler, for the appellant.
    
      H. D. Van Orden, for the respondent.
   Hatch, J.:

Hnder the authorities and the findings of the court below, I am unable to see any basis upon which this .judgment can be disturbed. The evidence clearly shows that the deceased, in anticipation of a fatal result attending upon the operation which she was about to undergo, applied to the officer'of the bank to have the fund represented in the books deposited in trust for the plaintiff; this was. done, and an entry to that effect made in the book of deposit, and also in the books of the bank. While she retained the custody of the bank books, yet she made such direction as to their disposition as would place them in the custody. of the bank, evidently for delivery to the cestui que trust. Such acts upon her part had the. effect of changing the title to the money and vesting it in the cestui, que trust. As the court has found, and the evidence warrants such, finding, the intent accompanied the act, and within the authorities, relied upon by the defendant, of Proseus v. Porter (20 App. Div. 44) and Beaver v. Beaver (117 N. Y. 421), the finding of the court, below is clearly sustained. Nor do we think that the statement of the officer of the bank that he would prepare an order for the transfer of the accounts sufficient to defeat the passing of title to the money. Such order was evidently for the protection of the bank, and had it been in fact executed, there would have been no further change in the accounts themselves, either in the pass books or on the books of the.bank, and that clearly constituted a declaration of trust in favor of the cestui que trust, and its effectiveness would not have been added to by the execution of the order. The notice in the bank book, requiring the person drawing money to present a written order, signed by the owner, when the book is not presented in person, relates exclusively to the drawing of the money, and is for. the protection of the bank. It can have no effect upon the. declaration of trust made by the donor, nor would the cestui que trust be required to have an order if in possession of the books, and it seems conclusive that, when the donor provided for the delivery of the books to the bank, she intended the bank to in turn deliver them to the person entitled thereto. Nothing further would be needed to enable the possessor to draw the money, as he would then stand in the position of being the owner of the money, and the holder of the bank book under the rules of the bank, and no order would be necessary.

We fully agree in the opinion delivered, by the learned court . below, and can safely rest our decision thereon.

The judgment should be' affirmed.

All concurred.

Judgment affirmed, with costs.

The following is the opinion of the court below: .

Hirschberg, J.:

On the 10th day of October, 1896, Eliza Ann OroWther, an Unmarried lady, resident at Glenham, in Dutchess county, was in possession of two pass books of the defendant, the Mechanics’ Saw ings Bank, one, No. 11, representing, with accrued interest to the time of the commencement of this action, $2,911.38, and the other, No. 108, representing, with like accrued interest, $1,485.68. The money was hers. On the day named, she took the books to the bank, and told the treasurer she was going to a hospital in Brooklyn for the purpose of submitting to an operation, and feared she would-never return. She instructed him to make the books payable in trust for the Board of Domestic Missions of the Reformed Church in America, adding that she was on her way to Newburgh and would call for the books on her-return. The treasurer took the books from her, agreeing to comply with her directions, and stated that on her return from Newburgh he would have an order prepared for her to sign, requesting the transfers of the accounts. ' He did not state to her that a rule of the bank required a written order, nor did she ever giVe such an order. He did make the transfers, Writing in each book tire words “ October 10, 1896, Eliza Ann Orowther, in trust for Board of Domestic Missions of the Reformed-Church ip America,” and on the same day transferred the; accounts on the books of thé bank in the same way. He never saw Miss Orowther again, but the books, after the transfer, were returned to her and were placed by her in a sealed envelope .indorsed in" her own hand with the words “ Send this to the Mechanics' Savings Bank, Fishkill Landing. Eliza Ann Orowther.” The books in the envelope so indorsed were placed by her in a tin box, also sealed, and after her death were delivered by the defendant James E. Dean, her executor, to the bank, in whose possession they have since remained. Miss Crowther died at the hospital, about two weeks after the transfer was made, leaving a will dated September 3, 1896,.in which she devised and bequeathed substantially all her property to the plaintiff, but which devise and bequest, being made within two months of the testatrix’s death, fails, because of the prohibition contained in section 6 of chapter 319 of the Laws of 1848.

It is apparent from this summary of the facts that an effective trust was declared by the deceased-for the benefit of the plaintiff. This is the doctrine of all the eases from Martin v. Funk (75 N. Y. 134) to Cunningham v. Davenport (147 id. 43), and is stated by the court in the latter case as follows (p. 47): “ The doctrine laid down by this court in the previous cases amounts to this, that the act of a depositor in opening an account in a savings bank-in trust for a third party, the deposit or retaining possession' of the bank book, and failing to notify the beneficiary, creates a trust if the depositor dies before the beneficiary, leaving the trust account open and unexplained.”

The cases of Beaver v. Beaver (117 N. Y. 421) and Proseus v. Porter (20 App. Div. 44), cited by the defendant Dean, executor, do not conflict with the doctrine referred to. The former was the case of an alleged gift not involving the declaration of a trust, and in the latter the court, while commenting on the circumstances of the delivery of the bank book to the beneficiary as a strong circumstance in favor of the trust, distinctly refers to it (p. 46) as an act which goes further than is positively requisite.” The cases all turn on the question of intent, which, in the absence of other explanation, is controlled by the terms of. the deposit. In this case the intention to create a trust is greatly strengthened by the prior will, which the deceased will be presumed to know would prove inoperative should she die within two months of its date. As has been seen, she apprehended a fatal result of the surgical operation, and created the trust in view of that hazard and in order to insure a disposition of her property in accordance wfith her wishes.

The estate cannot destroy the trust because the bank acted on a verbal order instead of a written order. The precise terms of the rule are not in evidence, but the rule is manifestly for the protection of the bank and its depositors to guard against error, and' by way of furnishing a justification to the institution for changing its accounts. Under the facts of.this case it will be deemed to have been waived.' Nothing was lacking to the creation of a valid trust, and the plaintiff is entitled to the judgment demanded, with costs.

Ordered accordingly.  