
    Joseph S. Rush, as Executor, etc., Plaintiff, v. The South Brooklyn Savings Institution, Defendant.
    
    (Supreme Court, Kings Trial Term,
    May, 1909.)
    Trusts — Creation and declaration — Deposit in bank — Control of trustee.
    The mere opening of a trust account in a savings bank constitutes nothing more than a revocable or tentative trust revocable at any time by the depositor unless either the account book is delivered to the beneficiary or some other formal act done to indicate an attempt on .the part of the depositor to create an irrevocable trust.
    Where, in such case, the depositor withdraws either all or part of the funds to the credit of such an account, the trust will be deemed to have been revoked pro tanto.
    
    Where, in an action by an executor to recover as belonging to the estate of his decedent the amount of a savings bank account in the form “ Lizzie Owens in trust for Lizzie Owens,” the plaintiff establishes that the beneficiary is a fictitious person; and it appears that decedent, in a written sixty days’ notice of withdrawal of the money required by the bank, described herself in the form in which the account was opened, such act constitutes as complete a revocation of the trust as if the money had been paid over to her.
    The statutory provision as to a depositor’s giving sixty days’ written notice of withdrawal of a savings bank account is for the protection of the bank only and does not inure to the benefit of the real beneficiary, if there 'is one.
    Declarations of decedent tending to explain an attempt by her to withdraw the fund made prior to the giving of the sixty days’ notice of withdrawal of the money were not self serving as the trust was then merely tentative and were admissible.
    Action by an executor to recover the amount of a trust account in a savings bank.
    J. W. Van Gorden, for plaintiff.
    J. Warren Greene, for defendant.
    
      
       Received too late for insertion in proper place. Affirmed by Appellate Division on this opinion.—[Rep.
    
   Carr, J.

The plaintiff is the executor of the last will of one Hannah E. Owens, deceased. Mrs. Owens during her lifetime was generally known as Lizzie Owens. During her life time, Lizzie Owens opened an account with the defendant in form as follows: “Lizzie Owens in trust for Lizzie Owens.” To the clerk at the savings bank who had charge of the opening of the account, she gave the residence of the beneficiary Lizzie Owens as Ho. 11 Atlantic avenue, and the age as twenty-six years, and her father’s name as Frank and her husband’s name --.

At the time of the death of the Lizzie Owens who is represented by this plaintiff, the moneys to the credit of said account were still on deposit with the defendant, and the plaintiff now sues for them on the theory that said moneys belong to the estate of his decedent. .

On the trial of the action, he has attempted to prove that the beneficiary in the alleged trust account was a fictitious person, and I think he has succeeded therein to a practically moral certainty. In giving the proof on this point, he has, however, offered certain declarations of the decedent in regard to the savings bank account, made during hér lifetime, and it is insisted that these admissions are not admissible in evidence as being self serving. They were admitted subject to a motion to strike out, and that motion is now before the court for determination.

At the close of all the testimony in the case, the defendant moved for a dismissal óf the complaint, and the plaintiff for a direction of a verdict, and the court directed a verdict for the- full amount claimed, subject to the opinion of the court as provided by section 1185 of the Code of Oivil Procedure. It seems to me that the plaintiff was entitled to a judgment under all the facts proved in the case, even though the declarations of the decedent be stricken out as. inadmissible. It is well settled law, in regard to these trust accounts in savings banks, that the mere opening of an’ account constitutes nothing more than a revocable or tentative trust, which may be revoked at any time by the depositor, unless, either the account book is delivered to the beneficiary or some other formal act done to indicate an attempt on the part of the depositor to create an irrevocable trust. It has been held that, where a depositor withdraws either all or part of the funds to the credit of such an account, the trust will be deemed to have been revoked as to the funds so drawn. Matter of United States Trust Company, 117 App. Div. 178; 189 N. Y. 500.

It is true that the depositor Lizzie Owens did not withdraw these funds from the defendant during her lifetiine, but she had taken every step that was possible for her to make an actual withdrawal. It appears that she went to the office of the defendant, and sought to withdraw the money but at that time the defendant was insisting upon its statutory privilege of requiring sixty days’ notice, because of the then existing financial disturbance in the city of blew York. She thereupon gave a written notice of withdrawal in order to be able to collect the money at the end of the sixty days. In this notice, she describes herself as Lizzie Owens in trust for Lizzie Owens;” but, as this was in the form in which the account was opened, she had to employ such form in order to meet the requirements of the depositary. I think this act of hers constitutes as complete a revocation of the trust as if the actual money had been handed over to her across the defendant’s counter.

The provision of the statute as to the sixty days’ notice was for the defendant’s protection only, and could not inure to the benefit of the real beneficiary if there had been one. If I am correct in this view, then the question as to the admission of evidence as to the declarations of the decedent, at the time of her attempt to withdraw the funds, is immaterial. I think, however, these declarations were admissible in evidence, as they tended to explain the intent of the depositor in the attempt to withdraw the fund. They were not self serving declarations at the time they were made, because, at that time, the trust was merely tentative and revocable, and no one had any absolute right in it as against its creator.

I am satisfied that, on the evidence in the case that there never was an actual beneficiary, the form in which the account was opened was but a device of the decedent in relation to her own funds.

Judgment is, therefore, directed for the plaintiff.

Judgment for plaintiff.  