
    Julia H. Tusch, Respondent, v. The German Savings Bank in the City of New York, Appellant.
    (Supreme Court, Appellate Term,
    June, 1897.)
    1. Trust o£ personal estate — Delivery.
    An instrument, executed and acknowledged by a person named Bolim, which states that he has constituted Julia H. Tusch his attorney to draw $100 from a bank for herself, also $150 for funeral expenses and the purchase of a headstone, and, after his death, to give his friend William Tusch his carpenter tools, and also to draw the balance of all moneys in bank belonging to him, the same to be distributed equally between his brother and his two sisters, and also to draw what money there is coming to him from another savings bank named, and to give it to his friend William Tusch, followed by the usual clause contained in powers of attorney, accompanied by a delivery upon the part of Bohm, two or three days before his death, of a savings bankbook evidencing his deposit in the first savings bank, is to be deemed a trust of personal property and not a mere power of attorney.
    
      2. Same — Revocable by the recovery from illness of the donor.
    The trust created is revocable in its nature, and as the donor was very ill at the time of the execution of the instrument, it would, as in the case of gifts causa mortis, have been revoked had the donor recovered from the illness from which he was suffering when he executed the instrument; but as he died, the instrument must be deemed a valid gift, providing for a distribution of liis personal property among the donees mentioned' in the trust, and the trustee is entitled to recover of the 'savings bank, whose bank book was delivered by the donor to the trustee, the amount of the deposit.
    Appeal by the defendant from an affirmance by the General Term of the Oity Court of a judgment in favor of the plaintiff for $888.37, entered upon a verdict directed by the court. The action was brought to recover $780.38, a deposit made in defendant’s bank by Edwin Godlib Bohm, as appears by his pass-book issued by the bank, the plaintiff claiming, by virtue of the following instrument executed and acknowledged by the depositor:
    “ Know all. men by these presents:
    “ That I, Edwin Godlib Bohm, have , made, constituted and appointed, and by these presents do make, constitute and appoint Julia H., Tusch my true and lawful attorney, for me, and in my name, place and stead, to draw one hundred dollars from the bank for herself, also one hundred and fifty dollars for funeral expenses, and the purchase of a headstone, and - to give my friend, William Tusch, after my death my carpenter tools, and also to draw the balance, of all moneys in , bank belonging to me, and to be distributed equally between my brother and two sisters in Germany;, also to draw what money there is coming to me from the United States Savings & Loan Bank and to give it to my friend, William Tusch, giving and granting unto the said attorney full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully to alb intents and purposes as I might or could do if personally present, with full powur of substitution and revocation, hereby ratifying and confirming all that the said attorney or her substitute shall lawfully , do or cause to be done by virtue hereof.
    “ In witness whereof, L have hereunto set my hand and seal the twentieth day of July, in the year one thousand eight hundred and ninety-six. I
    [l. s.] ■ “ EDWIN GODLIB BOHM.
    
      “ Sealed and delivered in the presence of '
    “ Agnes P. MoOonigle.”
    (Duly acknowledged.)
    The complaint alleged the execution and delivery to the plaintiff of the foregoing instrument, and-described it as “a power of attorney and trust deed;” and also alleged the.delivery to the plaintiff of the pass-book vesting all the title to the said money on deposit in the plaintiff for the purposes in said instrument described; and that, thereafter, the said Bohm died and that, since his decease, plaintiff caused a demand to be made upon the defendant for the moneys deposited to his credit, producing at the same time the said bank and deposit-book, but that defendant refused to pay over the same. The defense, in addition to certain denials upon information and belief, set up that the alleged power of attorney mentioned in the plaintiff’s complaint was ineffectual and invalid in law at the time of the demand upon the bank by the plaintiff, the said Bohm at that time being dead; and that defendant is ready and willing to pay over the moneys deposited to his credit to his legal representatives.
    Frederick W. Holls, and Holls, Wagner & Burghard, for appellant.
    A. H. Parkkurst and Browne & Sheehan, for respondent.
   Daly, P. J.

The right of the plaintiff to recover depends upon the written instrument which was delivered to her at the time that the bank or pass-book was also delivered, since her title to the moneys on deposit is derived solely from the writing in question. The evidence in the case shows that the depositor Bohm was very ill and did not expect to live and died two or three days after the delivery of the paper and book to the plaintiff; that he wanted to go down to the bank to draw his money, but he was either too sick, or it was raining, and the plaintiff would not allow him to go and draw the money; that the doctor brought an attorney and Bohm “ wanted to put it in black and white,” and that he delivered the book and paper to the plaintiff in the presence of the doctor and the attorney. The complaint does not allege a gift causa mortis, but a power of attorney and a trust deed. So far as the power of attorney is concerned, the appellant successfully assailed any right in plaintiff by virtue thereof, since such a power is necessarily revoked by the death of the party executing it and before any attempt is made to act under it.

The complaint describes the instrument under which the plaintiff claims as a trust deed, as well as a power of attorney, and, if a trust was thereby created, the form of the instrument may be disregarded, and the fact that a power of attorney was contained in it will not affect the validity of the trust. The attorney who was called in to draw the paper used, as a vehicle for recording the wishes of his client, a form of power of attorney, but that fact will not defeat the intention of the deceased, if his purpose to create a valid trust is plainly apparent from the writing. Such' intention in this case is clearly expressed and should be carried out if possible. As it is a trust of personal property, it could be created without a writing and, as the appellant. concedes, it is competent and proper to take into consideration the surrounding facts and circumstances evidencing the. motive and intent of the'testator.

The contention of appellant is that the instrument is ineffectual - as a trust deed, because it negatives the idea of a present vesting of title in the plaintiff, which is the first essential requisite in the creation of a. trust. But the basis of this argument is the inconsistency between a power of attorney and a trust; since in the former case the principal retains the title, conferring only the power of disposition upon another as his agent; while “ to create a trust it is necessary that there should be an intention on the part of the donor to' part with all interest in the subject of the trust, and to vest the title in another by some act sufficient to pass the title. The question of intent controls.” Markey v. Markey, 13 N. Y. Supp. 925. If, however, the form of the instrument, namely, that of a power of attorney, is purely accidental, it will not affect a trust, otherwise clearly expressed .in it. ■ If the intention of the donor is to create a trust and' that is clearly apparent, such intention will control, instead of the mere matter of form.

It might, at first sight, seem that there was no intention to vest title in the donee, since this instrument was certainly made in contemplation of death and with the same reservation of power to. revoke it as exists in the case of gifts causa mortis. That is to say, had Bohm recovered from the illness under which he was suffering at the time that he executed this instrument and attempted to recover his pass-book and other property mentioned in the paper from the plaintiff, he would have had the undoubted right to do so, and any attempt of the plaintiff to retain them against his wishes would have receivéd no support from.the. courts.

But this view of the intention of the donor is not inconsistent with the creation of a valid trust. Valid trusts may be created, revocable at the pleasure of the settlor. 27 Am. & Eng. Ency. of Law, 310. The instrument in question might have provided for a revesting of the property in Bohm in case of his recovery, and, notwithstanding, the title would have passed, subject to such a contingency. The circumstances under which the paper was executed imply the reservation, of a power of revocation and, while this protects amply the rights of a person in the condition of the deceased, it does not affect the validity of the disposition which he clearly intended to make and which was to take effect immediately, subject only to the contingency named.

I assume that, notwithstanding this instrument became operative by its terms and by delivery so as to pass the property described in it to the trustee, yet, under the circumstances’ of the case, being executed in expectation .of death and with regard to that con- • tingency only, the donor or settlor of the trust would be entitled, in case of his recovery, to be reinvested with the property, for a right in the nature of a power of revocation in that contingency is to be inferred from the circumstances under which the paper was delivered. But, apart from the effect of the ultimate recovery of the settlor from his illness, there was an absolute and irrevocable trust created by the delivery of the deed. In the cases cited by the appellant (Fisher v. Hall, 41 N. Y. 416, and Bryant v. Bryant, 42 id. 11), the deeds of property were held to be inoperative for want of a delivery so as to pass a present title. No such difficulty exists in. this case, the - delivery having been- established. In Meiggs v. Meiggs, 15 Hun, 453, also cited by appellant, it was held that no valid trust was established for want of a complete and valid delivery of the subject and because of the evidence of an intention not to place the property irrevocably beyond the donor’s control; the bonds which were delivered as a provision for the donor’s children, in the event of financial disaster of the donor, being deposited subject to the latter’s right to withdraw them.

In the case before us, there was complete and explicit provision made by an instrument in writing for the disposition of the property by the trustee, a delivery of the instrument and delivery of the bank-book, without which a demand upon the bank would have been ineffectual, and, therefore, with the plain intent to put the trustee in possession of the fund. I can see no objection to effectuating the will of the donor under these circumstances. ■ I do not see why the donor, having the power to make a valid gift in expectation of death, could not provide, by the means he adopted, for a distribution of his personal property among several donees by the creation of a trust for that purpose.

The judgment should be affirmed, with costs.

MoAdam and Bisohost, JJ., concur.

Judgment affirmed, with costs.  