
    Eliza Schluter, as Adm’rx, App’lt, v. The Bowery Savings Bank, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed November 1, 1889.)
    
    1. Savings Banks — Administrator.
    Where a mother deposited money in a savings bank in her own name “in trust for ” an infant, the payment by the bank to the administrator of the mother appointed in a foreign state discharges the bank from responsibility to the beneficiary.
    2. Same.
    The fact that the depositor left a will, which was afterwards probated in this state, and demand made by the executor, will not make the bank liable for having made such payment.
    In October, 1872, Margaret Knittel, then a married woman, deposited in the Bowery Savings Bank the money claimed in this action in trust for Antoinette Knittel, which was entered upon the books of the bank, and the pass book belonging to Mrs. Knit-tel, as follows : “ Bowery Savings Bank in account with Margaret Knittel, -in trust for Antoinette Knittel.” Antoinette was then an infant, about six years old, and lived with her parents in this state. Subsequently they moved to the state of New Jersey, where they lived until June 18, 1875, when Mrs. Knittel died. Her husband took out letters of administration on her estate in the state of New Jersey, and on October 22, 1875, the defendant paid to him, as such administrator, the deposit with the interest thereon, then amounting to $629.40. Mrs. Knittel, in fact, left a last will and testament, which was subsequently, on the 17th day of November, 1875, admitted to probate by the surrogate of the county of New York, and letters testamentary were issued to Louis Sier, the executor named iu the will. Soon thereafter he demanded payment of the deposit to him, which was refused. On the 18th day of December, 1885, Antoinette, who continued to reside in the state of New Jersey, died, and the plaintiff was, on the 14th day of May thereafter, appointed by the surrogate of New York administrator of her estate. He then demanded payment of the deposit, and the interest thereon, which was refused, and then this action was commenced. The action was brought to trial at a circuit, and at the close of the evidence .the court directed a verdict in favor of the defendant, on the ground that the payment to the administrator of Mrs. Knittel discharged the defendant. From the judgment entered upon the verdict the plaintiff appealed to the general term, and then to this court.
    
      John McCrone, for app’lt; Carlisle Norwood, Jr., for resp’t.
    
      
       Affirming 16 N. Y. State Rep., 784.
    
   Earl, J.

The defendant was incorporated by the act, chap. 229 of the Laws of 1834, and by § 6 of that act it was provided that deposits therein should be repaid to each depositor when required and at such time and with such interest and under such regulations as the board of managers from time to time prescribed. One of the by-laws of the defendant printed in the pass book which was delivered to the depositor provided that on the decease of any depositor the amount standing to the credit of the deceased should be paid to his or her legal representatives. We have several times held that by such a deposit the depositor constituted himself or herself a trustee, and that the title to the fund was thereby transferred from the depositor, individually, to the depositor as trustee; and in Boone v. Citizens Savings Bank, 84 N. Y., 83, a case entirely similar to this, we held that payment of the deposit to the administrator of the depositor, in the absence of any notice from the beneficiary, was good and effectual to discharge the savings bank; and it is unnecessary now to repeat the reasoning of the opinion in that case. Here there was no notice to the bank from the beneficiary, and the payment to the administrator of Mrs. Knittel was made in entire good faith. But the claim is made that because Mr. Knittel was a foreign administrator, deriving his authority from administration granted in the state of New Jersey, he was not the personal representative of the deceased and that therefore payment could not legally be made to him. Payment to the personal representative is good because at the death of the intestate he becomes entitled to all his personal property wherever situated, and having the legal title thereto he can. demand.payment of dioses in action and a payment to him made anywhere, in the absence of any conflicting claim existing at the time, is valid. It is true that if the defendant had declined payment the foreign administrator could not have brought action in this state to enforce it. But a voluntary payment to such an 'administrator has always been held valid. Therefore in receiving this payment Mr. Knittel was the personal representative of the deceased and able to give an effectual discharge to the defendant. Parsons v. Lyman, 20 N. Y., 103; Petersen v. Chemical Bank, 32 id, 21; In the Matter of the Estate of Butler, 38 id, 397; Wilkins v. Ellett, 9 Wall., 740.

Mrs. Knittel, however, actually left a will which was subsequently admitted to probate. But the letters of administration were not therefore void, the court having jurisdiction to grant them. And until they were revoked all persons acting in good faith were protected in dealing with the administrator thus appointed. And so it has always been held. Roderigas v. East River Savings Institution, 63 N. Y., 460; S. C., 76 id., 316; Kittredge v. Folsom, 8 N. H., 98; Patton's Appeal, 31 Pa., 465. Here the payment was made before the will was admitted to probate, and. at the time of such payment Mr. Knittel was the legal representative of the deceased and authorized to administer upon her estate. Our attention has been called to no case, and we are confident that none can be found, holding that the subsequent discovery of a will and its admission to probate renders the prior appointment of an administrator absolutely void so as to give no protection to persons who in dealing with the administrator have acted on the faith thereof. Wcerner on Administration, 568, 588, 571.

Under the act, chap. 782 of the Laws of 1867, Mrs. Knittel, although a married woman, was capable of being a trustee. She constituted herself a trustee here, and here the trust fund remained, and, therefore, although by the law of New Jersey a married woman could not be appointed a trustee, yet the trust could be enforced here. Her removal to that state did not divest her of the title to the fund she thus had and that title remained in her as no one was appointed to take it from her.

The statutes of New Jersey were proved showing that the surrogate of the county of which Mrs. Knittebwas an inhabitant and resident at the time of her death had jurisdiction to grant letters of administration upon her estate. While he had no authority to grant letters of administration unless she died intestate, intestacy like inhabitancy was one of the facts which he was to determine. He had general jurisdiction of the subject of administration, and having determined that she died intestate he was authorized to grant administration upon her estate. The proceedings in the surrogate’s court were properly exemplified" and proved.

But the further claim is made that the answer was insufficient to permit the laws of New Jersey to be read in evidence for the reason that they were not therein alleged. It is there alleged “ that Margaret Knittel died an inhabitant of and domiciled in and a resident of Hoboken, Hudson county, New Jersey; that thereafter and on-the 19th of October, 1875, letters of administration on the goods, chattels, rights and credits of Margaret Knittel, deceased, were duly issued to one Louis Knittel, the husband of the said Margaret Knittel, by the surrogate of the county of Hudson, state of New Jersey; that said surrogate had jurisdiction and was duty authorized and empowered by the laws of the state of New Jersey to issue said letters as aforesaid.” We think these allegations were sufficient to authorize proof of the laws of New Jersey and of the jurisdiction of the surrogate in issuing letters. H the plaintiff desired more specific allegations and were fairly entitled to them, he should have moved to make the answer more specific and definite. The answer gave him every information to which he was entitled, and he might, if he could, have shown that the surrogate had no jurisdiction, and that the laws did not authorize him to grant administration of the estate of Mrs. Knittel. So far as the case of Throop v. Hatch, 3 Abb. Pr., 23, may seem to hold the contrary doctrine, it does not receive our approval.

We are, therefore, of opinion that the judgment should be affirmed, with costs.

All concur.  