
    Eliza F. Duryea, Respondent, v. Jennie M. Knapp, as Administratrix, etc., of Jane Ann Conklin, Deceased, Appellant, Impleaded with Union Square Savings Bank, Defendant. Eliza F. Duryea, Respondent, v. Jennie M. Knapp, as Administratrix, etc., of Jane Ann Conklin, Deceased, Appellant, Impleaded with New York Savings Bank, Defendant. Eliza F. Duryea, Respondent, v. Jennie M. Knapp, as Administratrix, etc., of Jane Ann Conklin, Deceased, Appellant, Impleaded with Irving Savings Institution, Defendant. Mabel D. Polhemus, Respondent, v. Jennie M. Knapp, as Administratrix, etc., of Jane Ann Conklin, Deceased, Appellant, Impleaded with Emigrant Industrial Savings Bank, Defendant.
    Second Department,
    July 28, 1916.
    Gift — savings bank deposit in trust for another — when trust revocable — gift causa mortis — revocation by donor before death—evidence — transactions with person since deceased.
    Action to recover the amount of savings bank deposits which stood in the name of the depositor ‘‘ in trust ” for the several plaintiffs. It appeared that after the depositor, since deceased, had the deposits made in the form aforesaid, she continued to retain possession of the bank books which she kept in a safe deposit box, which was rented in the joint names of herself and the husband of one of the plaintiffs. There was testimony to the effect that on giving up the deposit box the decedent handed the books to said husband, stating that they belonged to the plaintiffs and that she wished him to keep them; but it was admitted that the plaintiffs were both in the house at the time and that the decedent did not herself give them the bank books. The husband testified that on the same day he delivered the books to the plaintiffs who then handed them back to him for safe-keeping. Before the depositor’s death and on complaint of one of the plaintiffs, she was committed to a hospital for the insane, but was later discharged therefrom on the ground that she had been found to be of sound mind, and thereafter she notified the banks of deposit, by formal written instrument, that she revoked the trusts. The decedent up to the time of her death continued to draw the interest of the accounts and to use the same for her own purposes. On all the evidence,
    Held, that the acts of the decedent did not constitute a valid, absolute and irrevocable gift of the deposits, but at the most constituted a gift causa mortis, and hence the formal revocation by the donor before her death revoked the gift.
    The husband of the plaintiff, to whom the books were delivered by the decedent, was not incompetent under section 829 of the Code of Civil Procedure, to testify to transactions with the decedent.
    Appeals by the defendant, Jennie M. Knapp, as administratrix, from four j udgments of the Supreme Court in favor of the respective plaintiffs, entered in the office of the clerk of the county of Rockland on the 13th day of October, 1915, upon the decision of the court after trials at the Rockland Special Term.
    The actions were brought to recover the amount of four savings bank accounts. The subjects of the four actions involved similar facts and they were tried and decided together.
    
      Lyman Ward, for the appellant.
    
      Frank Comesky, for the respondents.
   Putnam, J.:

These appeals raise the question whether savings bank trusts were irrevocably made at or before 1910, or were subject to revocation during the lifetime of Mrs. Jane Ann Conklin, the alleged donor. Two of the savings bank accounts (the subject of suit No. 3) were opened in 1894 in the form of Jane Ann Conklin in trust for Eliza F. Duryea.” The other three accounts (suits 1, 2 and 4) were similarly changed in October, Í905. An account in the Emigrant Industrial Savings Bank was then changed in favor of Mrs..Polhemus, which is the subject of suit No. 4. The banks then returned all of these bank books to Mrs. Conklin; and the books remained in her possession, in a safe deposit box in New York, which was rented in the joint names of Mrs. Conklin and Mr. Duryea (who was Mrs. Conklin’s confidential agent) up to February 8, 1910. On that date, when Mrs. Conklin was eighty-six years old, this safe deposit box was given up, and Mr¡ Duryea brought these bank books to Nyack, where Mrs. Conklin then boarded in Mr. Duryea’s house. Mr. Duryea testified that he took the four bank books upstairs to Mrs. Conklin’s room, and there handed them to her and left them with her; that later Mrs. Conklin called down from over the banister to Mr. Duryea, and when he came up in response, she handed him the books, which she said belonged to Mrs. Duryea and to Mrs. Polhemus, the plaintiffs herein; that she wanted him to take the books down and put them in his box. Although Mrs. Duryea and Mrs. Polhemus were both in the house at the time, Mrs. Conklin did not herself give them the bank books. After this time Mr. Duryea kept exclusive possession of the books, although Mrs. Conklin continued to draw the interest and use it for her own purposes. Mr. Duryea testified also that he had handed the books that night to Mrs. Duryea and Mrs. Polhemus, who handed him back the books for safe keeping. At all times Mrs. Conklin continued to draw the interest on these accounts on her own order, and to use the proceeds for her own purposes. On February 15, 1913, on the petition of Mrs. Duryea, one of the plaintiffs, Mrs. Conklin was committed to the State Hospital for the Insane at Middletown, N. Y., where she remained two months under observation. The hospital authorities then voluntarily released her, on the ground that she was not and had not been insane. The lunacy proceedings were, therefore, vacated. After Mrs. Conklin’s return to Nyack, but not to the residence of Mrs. Duryea, on May 26, 1913, she served formal notices of revocation of the alleged trusts, duly acknowledged, upon the defendant banks. She died Septemher 26, 1914. In the interval of sixteen months between her attempted revocation and Mrs. Conklin’s death, the plaintiffs took no proceedings to impress a trust upon these bank accounts.

To affirm the judgments in plaintiffs’ favor we must hold that the change in the savings bank accounts, with Mrs. Conklin’s subsequent conduct, especially the circumstances at Nyack when she is said to have declared to Mr. Duryea that the books were the property of the plaintiffs, constituted a valid gift, absolute and irrevocable. But here we have the deceased, at a time when she had been proved to be sane and competent, asserting a right to revoke these dispositions by a formal written instrument. Obviously the gift now claimed did not exist before February, 1910, since the books were still under her control, which Mr. Duryea recognized by bringing-back the books and delivering them to her. While Mr. Duryea, the husband pf one of the plaintiffs, testified he delivered to her and Mrs. Polhemus the respective books, which testimony was not within the prohibition of the Code of Civil Procedure, section 829, yet it is singular that Mrs. Conklin herself made no such gift to these ladies in the same house. She continued thereafter to draw the interest on her own orders, an act indicating that she had not divested herself of the beneficial control of the deposits. Mrs. Conklin’s attitude and intent as to this transaction strongly appear from her accusations of Mr. Duryea, before the end of 1910, that he had deprived her of her property, when she once came to the window and exclaimed, He won’t give me my bank books.” As late as 1912, Mrs. Conklin was asking for these books which Mr. Duryea withheld from her. Mr. Duryea says he did it, not because she had irrevocably disposed of them by gift to his wife, but because “ I didn’t think that she was in a condition to have them.” Even in March, 1913, Mr. Duryea admitted that he was caring for the books for Mrs. Conklin.

The deposits in trust for the plaintiffs were not irrevocable until completed by some unequivocal act or declaration. (Matter of Totten, 179 N. Y. 112.) Deceased showed an aversion to. making a will. It was natural for her to think of these bank books as a substitute for a legacy by will. Her intent to make a gift causa mortis finds support in a query in her handwriting on the last page of her memorandum hook: “Can I draw on money in trust when I was advised to put it there as it was better than a Will in case I should want to use it.” She must have so looked upon these dispositions. She exercised the power to revoke which can be done with gifts causa mortis. (Bliss v. Fosdick, 86 Hun, 162, 173.) In view of the long-settled rules rigidly enforced to protect estates against gifts first asserted after death of the donor, we think the testimony for plaintiffs did not sufficiently establish their title. On the contrary, the circumstances point to a conditional gift, not taking effect before death, and'hence subject to revocation. The instruments of May 26, 1913, exercised the power to revoke, unless Mrs. Conklin had already irrevocably conferred title. In view of all the testimony, we are constrained to conclude that decedent had never completely given up her control and dominion over this property, so that she had title thereto at her death.

I advise that the findings of fact numbered 2 in suits Nos. 1, 2 and 3, and the finding numbered 3 in suit No. 4, be severally reversed, and in lieu of such findings a new one be made by us “That said Jane Ann Conklin did not divest herself of dominion, control and custody over said bank books, but thereafter retained the same, and on May 26, 1913, lawfully and effectively revoked said tentative change in said bank accounts, and gave due notice of such revocation to said banks, so that when she died she had full title thereto;” that this court, upon this appeal, accordingly, reversing the conclusions of law by the learned court at Special Term, make conclusions of law in favor of the appellant, decreeing to her, as administratrix, the said bank accounts, with costs.

Jenks, P. J., Carr, Stapleton and Rich JJ., concurred.

Judgments reversed, with costs, in accordance with opinion. Orders to be settled before Mr. Justice Putnam.  