
    Mary Scott, Resp’t, v. John H. Harbeck et al., Executors,, etc., of Elvira Harbeck, Deceased, App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed June 25, 1888.)
    
    1. Trust—Deposit of money in bank as trustee for another—Effect-of,
    Elvira Barker deposited money in bank in 1860, in her own name as trustee for the plaintiff. In 1884 she drew it out and converted it to her own use. It was immaterial whether the plaintiff knew of the deposit or not when the money was deposited in her name as cestui que trust it became her property. By the act of depositing the money (assuming it was the money of testatrix at the time) it became an executed gift and thereafter was a trust fund.
    2. Same—Trustee may draw out money but must account therefor.
    The legal title was in the trustee; but she could not convert the money to her own use without being liable to account.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed by the court on the trial at the Kings county circuit.
    The action was brought against the defendants, as executors of Elvira Harbeck, deceased, to recover the amount of a deposit made in the Bowery Savings Bank by the deceased in her own name in trust for Mary Barker, which money was subsequently drawn out by the deceased and used for her own purpose.
    There was no evidence that the plaintiff ever knew of the-deposit previous to the death of the testatrix.
    
      Fisher & Voltz, for resp’t; Wing, Shoudy & Putnam,. for app’lts.
   Prytt, J.

Upon the conceded facts we think the plaintiff was entitled to have the jury instructed to find a verdict.

Elvira Barker deposited money in bank in 1860 in her own name as trustee for the plaintiff. In 1884 she drew it out and converted it to her own use. It was immaterial whether the plaintiff knew of the deposit or not; when the money was deposited in her name as cestui que trust it became her property. Martin v. Funk, 75 N. Y., 134; Mabie v. Bailey. 95 id., 206; Willis v. Smyth, 91 id., 297

None of the acts of the trustee afterwards had any tendency to prove a valid defense to the action. Mabie v. Bailey, Supra.

The legal title was in the trustee, but she could not convert the money to her own use without being liable to account.

By the act of depositing the money (assuming it was the money of testatrix at the time), it became an executed gift, and thereafter it was a trust fund; so that in no view of the case was there any question of fact for the jury to determine.

The Judgment is right and must be affirmed with costs.

Barnard, P. J., concurs.

Dykman, J.

This action was brought to recover the amount of a deposit in a savings bank to the credit of the plaintiff, who was then unmarried, and named Mary Baker. The complaint stated that prior to July 30, 1884, there was on deposit in the Bowery Savings Bank, in the city of New York, to the credit of Elvira Harbeck, in trust for the plaintiff, the sum of $986; That about that time Elvira Harbeck drew such money out of the bank and converted the same to her own use. Mrs. Harbeck is dead, and the action is brought against her executors. Upon the trial of the cause the defendant’s counsel made an admission of the foregoing facts stated in the complaint. Upon the trial the counsel for the defendant sought to prove, by way of defense to the action, that the plaintiff was ignorant of the deposit so made for her benefit, until after the death of the depositor.

A verdict was directed in favor of the plaintiff for the amount claimed, and the defendants have appealed from the judgment, and from the order for costs against the defendant.

Under a long line of decisions by the courts it was quite immaterial whether the plaintiff had knowledge of the deposit in her favor or not; such deposit was an executed trust depending upon no act of the plaintiff to make it valid or available to her.

The case of Martin v. Funk, reported in 75 N. Y. Reports, 134, seems to be decisive of this case. In that case a deposit was made in a savings bank of a sum of money belonging to the depositor, in trust for the plaintiff, who was ignorant of the deposit so made until after the death of the depositor. In an action to obtain possession of the pass books and to recover the deposits, it was held by the court of appeals that the transaction was valid and sufficient declaration of trust, and passed the title to the money deposited to the beneficiaries and constituted the depositor a trustee. It seems to be plain, therefore, that the judgment should be affirmed. There was no question made in the argument before us respecting the allowance of costs, and we assume that the point was abandoned.

The judgment should be affirmed with costs.  