
    Thomas J. Bishop, as Administrator, etc., of Ellen C. Maxwell, Deceased, Appellant, v. Seaman’s Bank for Savings in the City of New York, Respondent.
    
      Banking — a deposit by “ Ellen G. Maxwell, in trust for George T. Maxwell,” presumptively areates a trust — death of the beneficiary before that of the donor— bank protected in making a payment to the representatives of the beneficiary— circumstances showing the depositor’s intent.
    
    ■Where a deposit is made in a savings bank in an account opened in the name of “ Ellen C. Maxwell, in trust for George T.-Maxwell,” and thereafter the ■ depositor, Ellen 0. Maxwell, makes various deposits in the account, and up to the time of her death withdraws all interest moneys allowed thereon, a presumption arises, in the absence of evidence to the contrary, that the deposit, as made, created a trust in favor of George T. Maxwell.
    The death of George T. Maxwell prior to that of Ellen 0. Maxwell does not cause the trust to lapse, and the fact that the pass book was found among the assets of Ellen 0. Maxwell after her death gave to her representative no right to the payment of the money; certainly, as against the savings bank, which had prior to any demand upon it by the legal representative of Ellen 0. Maxwell, paid the money to the representatives of George T. Maxwell upon the presentation by them of the pass book; such payment discharges the bank from any further liability arising out of such account.
    Evidence of the surrounding circumstances tending to throw light on the original transaction in making the deposit, as bearing upon, the intent with which such deposit was made, is competent, but proof that George T. Maxwell was a jan- ■ itor, who had only the income derived- from such a position, while Ellen 0. Maxwell, his wife, had received from her father’s estate $40,000, and declarations made by Ellen 0. Maxwell to á niece some twelve years after the deposit was made, are not admissible for that purpose.
    Appeal by the plaintiff, Thomas J. Bishop, as administrator, etc., of Ellen 0. Maxwell, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county'of New York on the 21st day of April, 1898, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.
    
      Charles A. Decker, for the appellant.
    
      W. W. Thompson, for the respondent.
   O’Brien, J.:

On May 14, 1881, Ellen C. Maxwell, plaintiff’s intestate, opened an account with the defendant, and complied with its rules by making the statement required of depositors on opening an account, and- by enrolling her signature, “ Ellen 0. Maxwell, in trust for George T. Maxwell.” 'Upon the opening of the account she subscribed to the by-laws of the bank: From time to.time thereafter, and up to the date of her death, she made various deposits in the account, - allowed the interest to accumulate,.and made drafts therefrom. From January, 1887, to the time of her death, she withdrew all interest moneys which were allowed on the account. George T. Maxwell, her husband, ■ died on the 9th day of January, 1893. On the ninth day of February following Ellen 0. Maxwell drew from the account fifty-seven, dollars and seventy-six cents. On April 23, 1893, Ellen 0. Maxwell died. The pass hook issued by 'the defendant containing this account was found among the effects of Mrs. Maxwell after her decease, and was taken into the possession of the plaintiff as her administrator and retained by him. until it was delivered to his attorney at law. Administrators were appointed upon both the estate of Ellen 0. and George T. Maxwell. The administrators of the latter, on the 14th of' June, 1895, presented the pass book to the defendant, -and it paid over to them at that time the money standing to the credit of that account.

This payment, it is claimed, was unwarranted, the insistence being that the plaintiff herein was and is the only one entitled to receive the same as administrator of Ellen 0. Maxwell; and it was to recover from the bank the amount that this action was brought. • •

The question upon this appeal presents but another phase of a subject which has been many times, litigated and disposed of by "appellate courts, beginning with the case of Martin v. Funk (75 N. Y. 134), and further considered in Mabie v. Bailey (95 id. 206); Beaver v. Beaver (117 id. 430), and Cunningham v. Davenport (147 id. 43), and numerous other cases. In Mabie v. Bailey (supra) the opinion says: “ The case of Martin v. Funk * * * decided that a deposit made in the form of the deposit in this case constituted a trust and, unexplained, operated to transfer the beneficial interest in the. deposit to the beneficiary named, subject to the 'conditions of the trust to be implied from the circumstances. * * * The court, in Martin v. Funk, left undecided the point whether, in respect to such a transaction, ‘ surrounding circumstances may not be shown to vary or explain the apparent character of the acts and the intent with which they were done.’ If it was now necessary to decide that point, I should incline to the opinion that the character of such a transaction, as creating a trust, is not conclusively established by the mere fact of the deposit, so as to preclude evidence of contemporaneous facts and circumstances constituting res gestee, to show that the real motive of the depositor was not to create a trust, but to accomplish some independent and different purpose inconsistent with an intention to divest himself of the beneficial ownership of the fund.” Therein, also, was considered the effect of the withdrawal of deposits by the trustee, and such fact appearing, it was said, “ is not legitimate evidence that he did not intend, when the-deposits were made, to create a beneficial trust for the beneficiaries-named. If the withdrawal was with intent on his part to ignore the trust and to convert the money to his own use, it might be competent evidence of a change of purpose, but it throws no light on the original transaction.-”

In the case at bar we have nothing but the naked fact- of the deposit of the money in the name of Ellen 0. Maxwell in trust for George T. Maxwell. No competent proof was offered to show that this money was Mrs. Maxwells, if that fact could have any material bearing on the result; that which was attempted to be shown being that George T. Maxwell was a janitor who had but the income derived from such a position, while his wife had received from her father’s estate $10,000. The offer of such evidence was rejected, and the ruling thus made, we think, was right, for the reason that upon the question whether the money was Mrs. Maxwell’s or not, if material, it could not be shown by proof that George T. Maxwell was a man working for a salary while his wife was a woman of means. If we assume, however, that it was her own money, this would not change the presumption arising from the. form of the account, that the deposit, as made, created a trust in favor of George T. Maxwell; but, at most, it would have permitted the introduction of proof of the surrounding circumstances, if any had been offered, which tended to throw light on the original transaction in making the deposit, as bearing upon the intent with which such deposit was made. No such proof, however, was offered. The nearest approach to it were declarations of Mrs. Maxwell to her niece, made during Mr. Maxwell’s illness, which was some twelve years after the deposit was inade. Such declarations, made so long after the original transaction, were not admissible. (Mabie v. Bailey, supra.)

The presumption from the deposit, which is in no way rebutted by any testimony, is that a trust was created for the benefit of George T. Maxwell. Had he survived luis wife, no question could possibly have arisen as to his right to "claim-the money, even as against his wife’s administrators. It is insisted, however, that the fact that he died before his wife in some way caused a lapsing of the trust, and that the absence of any evidence that the beneficiary ever claimed any. interest in the deposit' during lifej. and the further fact that .the pass book was found among the assets of the wife after her death, gave to the representative of the latter the right, at least, as against the bank, to the payment of the money.

■ We mnst'not fail to note the distinction existing' between a contest waged between the administrators of the trustee and the beneficiary, where the money is still on deposit, and one between either of such persons and the bank after the latter has made a payment ■upon presentation of the pass book. The former question is not here involved, and need not be considered. In this action, brought directly against the bank after the payment to the representatives of the beneficiary, before any demand by the representatives of the trustee, we think that in such payment the bank is absolved from further liability to account to the plaintiff. In our view the trust did not lapse by the death of the husband before his wife, for ..the reason that, if the presumption holds good, as it does in the absence-of evidence rebutting it, that a trust was created, the authorities are uniform in holding that when once created it is irrevocable. There, is. no force, therefore, in the argument,- based upon the lapsing of the trust, of the reverting of the fund to the donor or creator of the trust. Our conclusion is that, the plaintiff never having made any demand upon the bank, and the latter having paid over the money on presentation of the pass book- to the representatives of the deceased beneficiary, it is protected in such payment, and the dismissal .of the complaint, for that reason, was right, and .the judgment should Be affirmed, with costs.

Van Brunt, P. J., Rumsey and McLaughlin, JJ., concurred.

Judgment affirmed, with costs.  