
    Lizzie Turnbull and Spencer Billington, as Administrators, etc., of Peter Turnbull, Deceased, Appellants, v. George H. Turnbull, Respondent.
    Third Department,
    March 13, 1907.
    Gift — deposit of money payable to depositor or his brother — when no gift or trust created.
    When one deposits money in a bank and accepts certificates of deposit payable to his own order or that of his brother, with the express intention that he shall use the money during his lifetime and that what he leaves at his death shall go to his brother, and the certificates remain in the possession of the depositor to the time of his death, there is no gift or trust in favor of the brother, but merely an attempt to do that in the future which can only be done by will.
    Appeal by the plaintiffs, Lizzie Turnbull and another, as administrators, áte., from a judgment of the County Court of Montgomery county, entered in the office of the clerk of said county on the 14th day of February, 1906, upon the decision of the court, rendered after a trial before the court without a jury, dismissing the plaintiffs’ complaint.
    
      H. V. Borst and Charles E. Hardies, for the appellants.
    
      R. B. Fish and Louis S. Carpenter, for the respondent.
   Cochrane, J.:

On March 24, 1903, Peter B. Turnbull, the plaintiffs’ intestate, received from the Fultonville National Bank a certificate of deposit, of which the following is a copy:

“ The Fultonville National Bank.
“No. 10387. $100.
“ Fultonville, N. Y., Mar. 24, 1903.
“ This certifies that P. B. Turnbull has deposited in this bank One Hundred Dollars payable to the order of himself or Geo. H. Turnbull on the return of this certificate properly endorsed.
O. F: CONABLE, Cashier.”

On June 13, 1903, the said deceased received from said bank another certificate of deposit for the sum of fifty dollars and on January 15, 1904, another certificate for the sum of- thirty dollars, such certificates being the same ■ in form- as that above set forth. These certificates remained in the possession of said Peter B. Turn-bull until his death, which occurred January 19, 1904, four days after the date of the last certificate. Thereafter the defendant having taken possession of the certificates received payment therefor on presentation to the bank. Plaintiffs having demanded of the defendant that said certificates be. returned bring this action for the conversion thereof.

Deceased and the defendant were brothers. The deceased began making deposits in the bank several years before his death when lie was residing with the defendant. The cashier of the bank testified that when the first deposit was made the deceased stated that lie wanted it arranged so that he could use the money in his lifetime and what he should have, left when he died he wanted his brother George to have. At the suggestion of the cashier a certificate was issued to the deceased in the form above indicated to carry out the declared purpose of the deceased as thus expressed. Thereafter from time to time the deceased made additional deposits and withdrew some of the money deposited and received from the- bank new certificates all in .the form indicated until his transactions with the bank resulted in the three certificates of • deposit which are the subject of this controversy.

The learned county judge has found as a fact on sufficient evidence that said certificates were and each of them was made payable as aforesaid by the. request, and direction of said deceased with the intent that in'case said certificates were outstanding at the time of his death and the defendant survived him, said certificates and the proceeds thereof should belong to the defendant and with the intent to give said certificates to the defendant in case lie survived the deceased and for the purpose of effectuating such intent and for no other purpose.”

In Sullivan v. Sullivan (161 N. Y. 554) facts were proved very similar to the facts here established. In that case a certificate of. deposit was received payable to the order of the depositor or in the case of her death to her niece-Catherine Sullivan.” The court said: “There was no intention either expressed in terms or to be-implied from the nature of the transaction to immediately transfer the title of the fund to the defendant or to the bank except as the depositary and debtor of the depositor. This is the essential difference between the position of the defendant and the cestuis que trust in the cases cited in support of her contention. As was said by Chief Judge Church in Martin v. Funk (75 N. Y. 138): 1 Enough must be done to pass the title, although when' a trust is declared, whether in a third person or the donor, it is not essential that the property should be actually possessed by the cestui que trust, nor is-it even essential that the latter should be informed of the trust.’ Reduced to its simplest analysis, the transaction between the plaintiff’s intestate and the bank established between'thein only the relation of debtor and creditor, which could not be and was not changed by the intention of the former to provide, in the event of her death, for the defendant. The defendant acquired no rights in prmenti • she was to acquire them in futuro. This is the test which marks the essential difference between a valid gift inter vivos or an effectual parol trust, and the mere expressed desire or intention to do that in the future which can only be done by will.”

When that case was before this court (39 App. Div. 99) there was an intimation that “ if the certificate had provided that the sum deposited should be payable to deceased or the defendant,” there might have been a valid trust, on the theory that the contract between the depositor, and the bank, when the fund was deposited, would have indicated that an interest in such fund was at once created in favor of the donee. The case of McElroy v. National Savings Bank (8 App. Div. 192) was cited in support of that proposition.

If in the present case it appeared that it had been the purpose of the deceased when he made the deposits to vest in the defendant an-immediate interest therein, perhaps we should hold, as intimated by this court in the Sullivan case, that a valid trust had been created for the benefit of the defendant. But such theory is opposed to the facts as found by the learned county judge. It is also contrary to the declared purpose of the deceased to the cashier of the bank when the first deposit was made that “he wanted it so that he could use it in his lifetime, and what he should have left when he died he wanted his brother George to have.” And the trial court has found that the certificates were issued in the form in which they appear witli the intent to give said certificates to the defendant in case he survived the deceased, and for the purpóse of effectuating such intent and for .no other purpose.” The facts, as proved and found by the trial court, bring the case squarely within the Sullivan cáse, and supply the difference in- the fortn of the certificates in this ease and the form of the certificate in that ease. It is clear that whatever interest the defendant was to have in' the deposits was to be postponed until the death of the depositor and was then to relate to only so much of the fund as might then remain. Tliere'was no gift or"trust, hut merely an attempt to do that in the future which can only be done by will.

The judgment must be reversed and a hew trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment reversed on law and'facts and new trial granted, "with costs to appellant to abide event.  