
    Cora Imogene Farleigh v. Alfred J. Cadman et al.
    
    (Supreme Court, Appellate Division, Second Department.
    December 1, 1896.)
    1. Gifts—Bank deposits.
    A deposit in the bank by a wife in the name of her husband, and in his presence, in trust for a third person, creates a gift in trust, though the husband controls the fund during his life.
    3. Same—Control of deposits—Trustee’s property.
    Deposits in a bank by a husband to the credit of an.account opened by his wife in his name, in trust for a third person, are subject to his control, and do not pass as a gift to the beneficiary of the trust, where the husband declared at the creation of the trust that he would control it for life, and finally placed the additional deposits to the credit of another.
    Appeal from special term, Kings County.
    
      Action by Cora Imogene Farleigh against Alfred J. Oadman .and others to have $778 and interest, deposited by Sarah Cad-man in the name of William J. Oadman, for the benefit of the plaintiff, declared a trust, and to have other moneys added by William J. Oadman to the deposit declared a part of such trust fund. From a judgment declaring a trust in part of such fund in favor of plaintiff, both parties appeal.
    The opinion of Mr. Justice Gfaynor at special term is as follows :
    That Mrs. Oadman intended to make a gift to thé plaintiff of the money standing to her credit in the bank is unquestionable. She so told the treasurer of the bank, and advised with him. It was his suggestion that the gift might be made by not putting the money in the name of the plaintiff, in the bank, but by putting it in the name of Mr. Oadman as trustee of the Elaintiff, and Mrs. Oadman acquiesced in the suggestion. She ad no intention of making a gift to her husband of the money, and what she said when transferring the account to his name, as trustee for the plaintiff, at the bank, does not prove that she had, even if it were competent to so prove. There was, at all events, a valid, gift to the plaintiff of the money Mrs. Cad-man had on deposit. Mr. Oadman expressed an intention of controlling it during his life, when the account was being transferred to him as trustee. This might evince that he was to be trustee for life; or that he desired to control the fund, but it does not prove that Mrs. Oadman was not making an absolute gift; for that was her intention, as I find upon the evidence. But, as to the deposits made to 'this trust account afterwards by Oadman, I think the intention to control, expressed by Mr. Oadman at the time of opening the account, governs them. The cases treat the question of the gift as one of the intention. Willis v. Smyth, 91 N. Y. 297; Mabil v. Bailey, 95 N. Y. 206. And I find, so far as these deposits were concerned, the intention of Mr. Oadman was that they were not to be an absolute gift, but to remain subject to his control. This appears from what he said when he opened the account, and, while that does not affect the gift of Mrs. Oadman, was, though so intended, also to apply to any moneys of his own which he should after-wards deposit to that account, and it did so apply. Also, the moneys deposited after the account was changed to be in trust for Alfred J. Oadman do not belong to the plaintiff. Let findings be prepared accordingly.
    H. S. Bellows (G. G. Reynolds, of counsel), for plaintiff ; Benedict & Benedict (R. D. Benedict, of counsel), for defendants.
   PER CURIAM.

Judgment affirmed, without costs, on •opinion at special term.

All concur.  