
    In the Matter of the Will of Robert T. Walker, Deceased.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 8, 1892.)
    
    1. Trusts—Deposits—Rights op cestuis que trust.
    Moneys deposited by a person as trusts for certain beneficiaries become at liis deatli the property of such persons and they are entitled to receive from his executors the bank books, and the fact that the will bequeaths such moneys as moneys deposited in trust to the persons for whom the deposits were made does not render them a part of the estate disposed of by the will.
    2. Same—Chaxge op deposit.
    The trustee by depositing the money does not thereby abandon all control of the fund, and as long as that is preserved for the benefit of the cestui que trust, he does not become personally liable by merely changing the fund from one bank to another.
    Appeal from decree of the surrogate of Kings county, admitting will to probate and construing the same.
    The will makes bequests to the Home for Old Men and Aged ■Couples and to the Protestant Episcopal Church Missionary Society for Seamen, and bequeaths to his several children the sums theretofore deposited in trust for them. Claim is made by Catherine E. Bond for moneys withdrawn by testator from her trust account amounting to $7,651.04,- but it appeared that he had during the same time advanced to her and made deposits to the amount of $7,999.71.
    
      Daniel Seymour, for app’lt Bond; J. A. K. Steele, for app’lt Home for Old Men ; Edmund L. Baylies, for appl’t Missionary Soc.; Benjamin T. Ripton, for resp’t Walker; Dana & Clarlcson, for resp’t Jane Ann Chambers ; Francis E. Dana, special guardian, for other resp’ts.
   Pratt, J.

This is an appeal from a decree of the surrogate of Kings county, made in tne above-entitled matter, settling the rights under the will of the various parties interested in said-estate.

We think the decree is entirely right That the moneys deposited by the decedent as trusts for certain beneficiaries became,, at his death, the property of such persons, is too familiar to require comment Martin v. Funk, 75 N. Y., 134; Boone v. Citizens Sav’gs B’k, 84 id., 86; Minor v. Rogers, 16 Am., 69; Mabie v. Bailey, 95 N. Y, 206; Young v. Young, 80 id., 422; Macy v. Williams, 125 id., 767; 36 St. Rep., 1011.

It follows from this proposition that such persons are entitled to receive from the executor the bank-books, and from the banks such deposits.

It also follows that these moneys should not be considered as a part of the estate disposed of by the will.

It is true the will mentions these moneys, but only to show that such deposits had been made in the manner described.

■ The finding, therefore, that the estate only amounted to the sum of $26,464.50, to be disposed of under the will, was correct, and such finding fixed the rights of the Home for Old Men and Aged Couples, and the Protestant Episcopal Church Missionary Society for Seamen. Laws of 1860, chap. 360; Laws of 1848, chap. 319 Hollis v. Drew Theol. Sem., 95 N. Y., 166.

As to the claim of Catherine E. Bond, I think it is clear that the sums withdrawn by the testator were so withdrawn with the consent and approval of said Catherine and for her benefit; but even if that were not the case it does not follow absolutely that where one deposits money for another in his name as trustee he abandons all control of the fund. So long as the fund is preserved intact it is not material that it is withdrawn from one bank and deposited in another. The main matter to be considered is the fund, and as long as that is preserved for the benefit of the cestui gue trust the trustee does not become personally liable by merely changing the fund from one bank to another. Suppose the case of a man depositing one-quarter of his estate in trust for one of his children and changing the deposit three times, then, under the theory urged by Catherine, that child would take the whole estate.

However, I think the evidence warrants the conclusion that whatever moneys the testator withdrew which had been deposited for Catherine was done as her agent and paid over to her, as the evidence is undisputed that the cash payments made to her together with the deposits made for her exceeded' the amounts withdrawn.

It would be in the highest degree prejudicial to cestui gue trusts and unjust to other heirs and legatees to hold that a trustee lost all discretion and control over a fund he had deposited as trustee.

Take this case, where, in some instances, the deposit made reached the interest drawing limit; was it not the duty of the-trustee to withdraw the. money and deposit where it would draw-interest ?

The claim of Catherine was not only without foundation in law but was unjust to other claimants in the estate.

It is absurd to suppose that the trustee would continue to make ■gifts to Catherine while he owed her large amounts for money fraudulently converted to his own use.

The decree should be affirmed,_ with costs to the respondents to be paid out of the estate.

Barnard, P. J., andDYKMAN, J., concur.  