
    Charles H. Hyde, as Administrator, etc., of John H. Hyde, Deceased, Respondent, v. George H. Kitchen and Another, as Executors, etc., of Maria Van Vleck, Deceased, Appellants.
    
      Sewings bank account in trust for another ■— the trust not affected by subsequent acts or declm’ations of the depositen'.
    
    The inference of the creation and declaration of an irrevocable trust arising (in the absence of any evidence of contemporaneous facts or circumstances indicating a contrary intent) from the deposit of money and the opening of an account in a savings bank by the depositor “for” another, accompanied by the issuanee of a bank book to tbe depositor “in trust” for such other person, cannot he refuted by evidence of subsequent acts or declarations of the depositor, not connected with the deposit so as to constitute res gestae.
    
    Appeal by tbe defendants, George H. Kitchen and David T. Oorde, as executors of Maria Yan YIeck, deceased, from a judgment of tbe Supreme Court in favor of tbe plaintiff, rendered upon a trial by tbe court at tbe New York Special Term and entered in tbe office of tbe clerk of tbe city and county of New York on tbe lltli day of April, 1893.
    Tbe action was brought for tbe purpose of recovering moneys deposited in tbe Manhattan Savings Institution in New York city, by Maria Yan YIeck-, since deceased, in trust for John H. Hyde.
    
      Joseph Fettretch, for tbe appellants.
    
      Jadislas Fa/rge, for tbe respondent.
   Barrett, J.:

Tbe learned judge at Special Term found as a fact that in February, 1881, Maria Yan YIeck deposited §110 in the Manhattan Savings Institution, in trust for tbe plaintiff’s intestate, John H. Hyde, who was her brother. This finding was based upon tbe undisputed testimony that at tbe time of tbe deposit, a bank book was issued and delivered 'to Mrs. Yan YIeck, at her request, with tbe words “ Maria Yan YIeck, in trust for John H. Hyde,” written upon tbe cover, and tbe words, “ Maria Yan YIeck, for John H. Hyde,” written within tbe cover. It also appeared that tbe ledger account, which was then opened and kept by the bank, was in the name of “ Maria Yan YIeck, for John H. Hyde.” Other sums were deposited by Mrs. Yan YIeck, and interest was credited to this account, from time to time, down to January, 1892. And during all that time tbe account continued in its original form. Mrs. Yan YIeck, however, retained tbe bank book in her possession down to tbe time of her death, and tbe defendants, her executors, have bad it since.

Upon this state of facts, tbe learned judge found, as a conclusion of law, that there was an irrevocable trust in favor of John H. Hyde, and that tbe plaintiff, as bis administrator, was entitled to tbe moneys in question.

We think this conclusion was correct, and we¡ need add but little to the satisfactory reasons which the learned judge has given therefor.'

The appellants concede that if the well-known case of Martin v. Funk (75 N. Y. 134) stood alone, they would not dispute the doctrine upon which this conclusion was arrived at. But they claim that later cases modify this doctrine, and hold that an intent, contrary to that evinced by the surroundings of the original transaction, may be established by later acts and declarations of the depositor, not in any way connected with the deposit.

Mabie v. Bailey (95 N. Y. 206) and Beaver v. Beaver (117 id. 421; second appeal, 50 N. Y. St. Repr. 69) are cited as examples of the latter view. We have examined these cases carefully, but we ■find nothing in them to support the appellant’s contention. In Medie v. Bailey, Judge Andrews said: “ The case of Martin v. Funk (75 N. Y. 134) 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.”

It is true that the learned judge suggested that the character- of such a transaction was not conclusively established by the mere fact of the deposit “ so as to preclude evidence of contemporaneous faets and circumstances constituting res gestae to show that the. real motive of the depositor was not to create a trust.” He nowhere intimated, however, that subsequent acts and declarations, not constituting res gestae, could be resorted to, to show the depositor’s original intent. On the contrary, he held that the subsequent withdrawal of the deposits by the depositor was not legitimate evidence that he did not intend, when the deposits were made, t'o create a beneficial trust for the beneficiary named. “ It might,” he added, be competent eviden.ee of a change of purpose, but it throws no light on the original transaction.”

In Beaver v. Beaver there wras no declaration of trust, and the case turned upon the validity of an alleged gift. No doubt is there expressed as to the correctness of the rule laid down in Martin v. Funk. On the contrary, that case was referred to with entire acquiescence in its trust doctrine. It was said that a declaration of trust could not be implied from a mere deposit by one person in the name of another. But it was conceded that such declaration could be implied from a deposit by one person in trust for another. And there was not a suggestion that such a trust was revocable, or that, subsequent acts and declarations of the depositor, constituting no part of the res gestee, were admissible for the purpose of showing a contrary intent to that evinced by the original transaction and its surroundings

In the present case there was no attempt to vary the effect of the original transaction by contemporaneous facts or circumstances. The original transaction certainly constituted, under the rule so laid down in Martin v. Funk and Mabie v. Bailey, an unequivocal declaration of trust. Such was the inference prima facie, at least from the deposit in the form proved and found. (Cases already cited; and see also Smith v. Lee, 2 T. & C. 591; Weaver v. Emigrant & Savings Bank, 17 Abb. N. C. 82; Barker v. Harbeck, 2 N. Y. Supp. 425.)

In the absence of any evidence of contemporaneous facts or circumstances indicating a contrary intent, that inference must hold. What the depositor may have subsequently said and done — words and acts not constituting res gestee— cannot affect the original transaction. They may show a change of purpose, but not of original intent.

The evidence which was here admitted comes within this principle, and that which was rejected was inadmissible upon the same principle.

It follows that the judgment shoxdd be affirmed, with costs.

Yan Brunt, P. J., and Follett, J., concurred.

Judgment affirmed, with costs.  