
    Sara E. Stockert, Appellant, v. Dry Dock Savings Institution and Isabella Grogan and Sara A. Trainor, as Executrices, etc., of Letitia Riley Grogan, Deceased, Respondents. Sara E. Stockert, Appellant, v. Bowery Savings Bank and Isabella Grogan and Sara A. Trainor, as Executrices, etc., of Letitia Riley Grogan, Deceased, Respondents.
    First Department,
    February 7, 1913.
    Trust — deposit in savings bank in trust for another — when trust irrevocable — revocation — return of bank book — effect of will disposing of moneys deposited in trust.
    Where a depositor opens savings bank accounts in trust for her niece and at once delivers the bank books to the beneficiary, and there is no other evidence of the intention of the depositor in opening the accounts, an irrevocable trust is created, which cannot be subsequently revoked without the consent of the beneficiary.
    
      Tbe mere retm*ning of the bank books by the beneficiary at the depositor’s request does not constitute a consent that the trust be revoked.
    A subsequent attempt by the depositor to dispose of the moneys included in the trust by will is ineffective.
    Appeals by the plaintiff, Sara E. Stockert, from two judgments of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 8 th day of July, 1912, upon the decision of the court rendered after • a trial at the New York Special Term.
    
      George H. Taylor, Jr., for the appellant.
    
      Carlisle Norwood, for the respondents.
   Scott, J.:

These appeals present a question as to “Savings Banks Trusts.”

The creator of the trusts was one Letitia Eiley Grogan, the wife of one William Grogan, to whom she had been married about ten years. She was, in 1909, about eighty years of age, and very illiterate and penurious. She had, by some means or other, acquired, for a woman of her class, considerable property.

She had on deposit in the Seaman’s Bank for Savings $615.50; in the Bowery Savings Bank under her maiden name of Letitia Eiley, $926.26; in the Dry Dock Savings Bank, $2,034.58, and in the Bank for Savings, $2,141.24. She owned a house at 32 Sherman street, Queens, in which she lived, some lots in the Bronx and money in the Long Island Savings Bank.

Plaintiff was a niece of Mrs. Grogan. She was married to a Dr. Charles F. Stockert, and lived in Nebraska. She had visited her aunt hi 1900, and again visited her in 1909 with her husband. Between 1900 and 1909 letters were exchanged from time to time between plaintiff and her aunt. It fairly appears from the letters and the evidence as to Mrs. Grogan’s declara- " tions that plaintiff was a favorite and perhaps the favorite relative of her aunt.

Plaintiff and her husband came to New York in 1909 partly to see the Hudson-Fulton celebration, and partly hi order that her husband might attend some post-graduate lectures. After they had been there some weeks plaintiff called on her aunt, after which they met with considerable frequency.

Mrs. Grogan exhibited to plaintiff and her husband her bank books, and finally gave them to Dr. Stockert to have the interest written up, and to make inquiries as to having the accounts put in trust. These books were apparently returned to Mrs. Grogan, because on October 27, 1909, she brought them with her to New York, and, in company with plaintiff and her husband, visited three of the savings banks. -

She had about $500 in the Seaman’s Savings Bank. Of this she drew out about $200, and transferred $369.80 to an account entitled “Letitia Grogan intrust for William Grogan ” (her husband). Of the amount drawn out she gave $150 to Dr. Stockert to pay to certain relatives, which he subsequently did. She then went to the Bowery Savings Bank, where she had on deposit $926.26, which she caused to be transferred to a new account entitled “ Letitia Riley in trust for Sara E. Stockert, Niece.” She delivered this bank book to plaintiff, who took it west with her and retained it until May 16, 1911.

She then went to the Dry Dock Savings Bank, where she had $2,034.58, which she had transferred to an account entitled “Letitia Riley in trust for Sara E. Stockert, Niece.” She delivered this book to plaintiff, who took it west with her and retained it until May 16, 1911. The amounts represented by these two accounts are the subjects of these actions. Owing, apparently, to a rule of the Bank of Savings that it would not accept an account “ in trust ” for a niece, Mrs. Grogan drew a draft on the bank directing it to pay the amount on deposit there ($2,747.24) to Sara E. Stockert, who had the amount transferred to herself and her husband “ or either, and survivor.” Subsequently, in January, 1910, upon an expression of a wish by Mrs. Grogan, this book was returned to the bank and the amount transferred to a new account in her name, and the new book sent to her.

It appears that Mrs. Grogan’s purpose in transferring this last account was that the money should be used, so far as necessary, in the payment of assessments on her Bronx lots, which, with her Long Island property, Mrs. Grogan conveyed to plaintiff on November 8, 1909. It appears quite plainly that at this time it was Mrs. Grogan’s purpose to give practically everything she possessed to plaintiff, except the small provision she made for her husband. On May 8, 1911, she wrote a letter róquesting plaintiff to return the two books, in care of a Mrs. Munch, who lived next door. She did not state why she wanted them back. Plaintiff promptly returned the books as requested, but they never came into Mrs. Grogan’s possession, being retained by Mrs. Munch. Her letter was dated May sixteenth.

About a week before she died Mrs. Grogan signed two notices, written by Sara A. Trainor, addressed to the Dry Dock and Bowery Savings Banks, stating that she had opened an account in the name of plaintiff’s husband, saying, “now I want to change it, and. they refuse to return the books,” and asking what to do. This latter was inaccurate in two respects. The account had not been put in the name of plaintiff’s husband, and plaintiff had not refused to return the books.

On May 24, 1911, Mrs. Grogan made a will, in which she specifically gave to one set of relatives the money in the Bowery Savings Bank, and to another set the money in the Dry Dock Savings Bank, explaining in a subsequent clause that she had given nothing to plaintiff, “because she and her husband have retained my bank books which they obtained from me for safe-keeping and have refused to return to me.” Mrs. Grogan died on May 26, 1911, and this controversy arose.

The present law as to savings bank trusts may be said to start with Matter of Totten (179 N. Y. 112), wherein the Court of Appeals reviewed all the former cases on the subject, and stated its intention to lay down a decisive rule as follows: “A deposit by one person of his own money, in his own name as trustee for another, standing alone, does not establish an irrevocable trust during the lifetime of the depositor. It is a tentative trust merely, revocable at will, until the depositor dies or completes the gift in his lifetime by some unequivocal act or declaration such as delivery of the pass-book, or notice to the beneficiary. In case the depositor dies before the beneficiary without revocation, or some decisive act or declaration of disaffirmance, the presumption arises that an absolute trust was created as to the balance on hand at the death of the depositor.” This rule appears to establish two propositions: First, if the depositor during his lifetime completes the gift by some unequivocal act, such as delivery of the pass book or notice to the beneficiary, the trust thereupon and thereby becomes irrevocable by any act of the depositor; second, in default of such an unequivocal act the trust remains tentative only during’ the lifetime of the depositor and revocable by him by some decisive act or declaration. If not so revoked the gift becomes absolute on the death of the depositor.

In Tierney v. Fitzpatrick (122. App. Div. 623) the depositor, after opening an account in trust for his son, left the bank book in his son’s house, but frequently took it away for a short time for the purpose of having the interest written up, etc. He drew out the money or part of it, and the action was against his executrix. This court held that the leaving’ of the bank book with the son under the circumstances, which involved the retention of dominion over it, did not make the trust irrevocable under the rule in the Totten case. The Court of Appeals reversed on a point not considered in this court, holding that it had been error to admit evidence of declarations by the depositor, after the deposit, that he had opened the account in this way because he already had as much money in his own name as the rules of the bank permitted. (195 N. Y. 433.)

In Matter of Davis (119 App. Div. 35) the beneficiary died before the depositor. After the death of the beneficiary the pass books were found in his safe deposit vault. Held, that the possession of the books by the beneficiary indicated that they had been given to him by the depositor, and that the trust had thereby become irrevocable.

In Matter of United States Trust Co. (117 App. Div. 178; affd. on opinion below, 189 N. Y. 500) a father had made a deposit in his own name in trust for his son. He had retained the bank book, and had never, so far as appeared, notified the son of the deposit. The son died before the father. The latter made no change in the account which remained in the form stated until his death. It was held that the trust had never been consummated, but remained tentative until the son’s death, when it lapsed ipso facto. The Totten case was quoted and relied upon.

In Matter of Pierce (132 App. Div. 465) the question arose under the Transfer Tax Act. The decedent had made deposits aggregating upwards of $20,000 in various savings banks in Massachusetts in trust for ” his wife and children. He had kept possession of the bank books, but had repeatedly declared to the beneficiaries that the moneys were theirs, and, in the case of the children, that they would be entitled to receive the funds when they became twenty-one years of age. Held, that the trust became absolute and irrevocable before the death of the testator, and not hable for tax. Matthews v. Brooklyn Savings Bank, recently decided (151 App. Div. 527), goes further than any of the foregoing cases. The bank book had been given to the beneficiary for safekeeping, and before the depositor’s death was returned to her, whereupon she drew out the money. It was held that the notice to the beneficiary implied in giving her custody of the bank book created an irrevocable trust. From the foregoing cases I think it must be held that a consummate and irrevocable trust was created in favor of plaintiff, and that the only question really involved is the effect of what happened in May, 1911, just before the depositor died.

The only evidence as to the intention of the depositor at the time the deposit was made is that she at once gave the bank book to plaintiff. That evidence, standing alone and unqualified, fixed the character of the trust as an irrevocable one under the rule in the Totten case. Having thus fixed its character as irrevocable the depositor could not thereafter revoke it without the consent of the beneficiary, and subsequent declarations by the depositor as to the intention with which she had made the deposit were inadmissible (Tierney v. Fitzpatrick, supra), and if admitted were without probative value.

The act of plaintiff in returning the bank books, at the depositor’s request, cannot be taken as a consent that the trust be revoked. The letter requesting that they be returned did not suggest an intention of revoking the trust or changing the form of the deposit, and there was no reason why plaintiff should have supposed that the depositor entertained any such intention, nor is there the slightest evidence that she did so intend. At all events, whatever may have been her secret intentions, she never attempted to effect a revocation either by notice to the beneficiary or by withdrawing the money, or by changing the form of the deposit.

If we are right that an irrevocable trust was created when the deposit was made, the attempt to dispose of the moneys included in the trust by will was obviously ineffective. (Kelly v. Beers, 194 N. Y. 60.) Indeed it would probably have been equally ineffective if the trust had remained tentative only, and no attempt had been made to revoke it before the death of the depositor, for in that case the trust would have become irrevocable at the same moment that the will took effect.

There is no dispute as to the facts and every fact essential to a final disposition of the controversy has been found by the trial court. There is, therefore, no occasion for disturbing the findings of fact or ordering a new trial.

The judgments appealed from must be reversed, and a judgment directed in each case in favor of the plaintiff, with costs in all courts against the defendants Isabella Grogan and Sara A. Trainor, as executrices, etc.

Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.

Judgments reversed and judgment directed in each case in favor of plaintiff, with costs in all courts against the defendants Isabella Grogan and Sara A. Trainor, as executrices, etc. Order to be settled on notice.  