
    Emile R. Lattan et al., Plaintiffs, v. William H. B. Totten, as Administrator, Etc., et al., Defendants.
    (Supreme Court, Kings Special Term for Trials,
    June, 1904.)
    Trust in a savings bank deposit — What acts make its creation doubtful — When a valid trust exists in such a deposit and in bank stock.
    It is doubtful whether the mere fact that a person opens a trust account in a bank, for another in his own name as trustee, is sufficient to enable a trial court to find that a valid trust was created.
    Where a father opens savings bank accounts in the names of his two sisters, as trustees for his daughters, and delivers the passbooks to the sisters, a valid trust is created for the daughters, and where the trustees subsequently draw the moneys and let the father have them, they are liable therefor to the daughters.
    The placing by the father of' bank stock in trust for the daughters, in the name of the same trustees, creates a trust for the daughters in respect to the bank stock. ,
    
    Action to recover from the estates of two deceased trustees the amounts of six trusts of money and hank stocks created for the plaintiffs by their father, the money being deposited in savings banks.
    Reuben L. Maynard for plaintiffs.
    George Richards and Benjamin F. Tracy for defendants.
   Gaynor, J.:

Whether the fact of a person opening a trust account in a bank for another in his own name as trustee suffices in and of itself to enable a trial court to make a finding of fact that a trust was created, is .certainly open to doubt in view of the largeness of the language in the opinions in Cunningham v. Davenport (147 N. Y. 43) and Beaver v. Beaver (117 N. Y. 430). I have heretofore considered the matter in Jenkins v. Baker (36 Misc. Rep. 55). The later case of Farlsigh v. Cadman (159 N. Y. 169) does not seem to do away with the difficulty of these two opinions at all, it seems to me, as was supposed on appeal in Jenkins v. Baker (77 App. Div. 509) ; for in that case the finding of fact was not made on the mere fact of the opening of the account, but on conclusive additional evidep.ee.

Bu-t in this case the trust accounts were not opened in the name of the depositor, but in the name of his two sisters to whom the deposit books were delivered. The deposits were made by the father of the plaintiffs in the name of such trustees in trust for the plaintiffs. The trustees from time to time drew out the money and apparently let the father have it. The defendants claim that this fact shows that there was in fact no trust created, but .that there were only the forms and appearances of a trust. It seems to me otherwise. The placing of the money in the name of the trustees in trust for the plaintiffs was an unequivocal declaration of trust. It put the fund out of the control of the father. If the trust was for the father it would have been so expressed. The express declaration of a trust for the plaintiffs excluded the idea of a trust for the father instead.

And the placing of the bank stock in trust for the plaintiffs in the name of the same trustees was clearly the creation of a trust in respect of it. The act was in no way equivocal on the question of forming a trust.

People are in the habit of depositing money in their own names in trust for. their children or other dependents for the purpose of convenience in keeping separate accounts of expenditures, or of opening several of such trust accounts in savings banks to get around the rule of such banks that they will pay interest on accounts only up to a limited amount of deposit. Hence, the fact of the opening of such an account may be equivocal, and therefore not in and of itself probative of an- intention to form a trust; but the present is not such a case.

The administrator of the estate of one of the deceased trustees has not defended, although he answered. The administrator of the estate of the other claims in her answer that if she is liable herein she is entitled to an accounting with the estate of the father, who was made a defendant, and is now represented herein by his administrator, and to have judgment against such estate for such an amount of the said trust funds as shall be found to have been paid to the father. But that issue is not germane to the issue presented by the plaintiffs, and therefore it cannot be tried here, and their case embarrassed and delayed by it.

Judgment for the plaintiffs.  