
    In the Matter of the Judicial Settlement of the Intermediate Account of Elizabeth M. Duffy, as Administratrix, etc., of Louisa Moran, Deceased, Appellant. Josephine McDermott, Respondent.
    Second Department,
    June 12, 1908.
    Trust—bank deposit — gift causa mortis — delivery — presumptions — appeal — rehearing before surrogate.
    Where one deposits money in his own ñamé in trust for another and the proposed beneficiary dies before the depositor, the tentative trust is extinguished unless there was some unequivocal act or declaration of the depositor indicating an intention to make the trust absolute and irrevocable.
    Delivery is essential to a gift causa mortis, and mere possession, while raising, a presumption of delivery, is insufficient if it appear that possession was obtained from one who herself had never had possession, for presumption cannot be piled upon presumption.
    While it is the duty "of an appellate court to strive to modify and affirm, yet in the case of an accounting where the questions can be disposed of in a few hearings befo're- the surrogate and the former- "decree cannot stand in important •particulars, the court will order a rehearing.
    Appeal by Elizabeth M. Duffy, individually and ás administratrix, etc., from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 12th day of December, 1907, and also from an order entered in said Surrogate’s Court on the 15th day,of January-, 1908, denying the appellant’s motion to resettle the said decree.
    
      Paul Bonynge [Jacob I. Bergen with him on the brief], for the appellant.
    
      John C. Judge, for the contestant, respondent.
   Jenks, J.:

• The schedule of assets in the administrator’s account recites: In addition to the foregoing conceded assets there is the following : On deposit in the Dime Savings Bank of Brooklyn to the credit of Bank Book No. 195755, $2,000.00, and accrued interest on the same to date. This bank book is entitled ‘ Dime Savings Bank in account with Louisa Moran in trust for Mary F. Moran.’ The estate of decedent {claims-the ownership of this book and the monies represented thereby. One Josephine McDermott also claims to be the owner of the same by virtue of an alleged gift causa mortis. The bank book is now in possession of said Josephine McDermott, but the claims of the respective parties to the same have not yet been finally adjudged.” At the close of the testimony the learned surrogate in an elaborate opinion decided that the said $2,000 was not a part of the estate and should not be included in the account as a surcharge. The decree orders that it be paid to the legal representatives of the estate of Mary F. Moran. Mrs. McDermott was the daughter of Mrs. Mary F. Moran, whom I shall call Mrs. Moran.

The learned surrogate in his opinion say's that Mrs. McDermott was the only next of kin and heir at law, but that statement is hardly justified by the evidence. The conclusion that the estate of Mary F. Moran owns the deposit is deduced from the possession of the bank book by her daughter, Mrs. McDermott, her sole heir at law and next of kin, proof that in another proceeding Mrs. McDermott failed to establish a gift causa mortis of the book from the depositor, and the presumption that the possession by Mrs. McDermott is lawful. My respect for the ability and acuteness of the learned surrogate has led me to consider this conclusion carefully, but I think that it is not legally sustainable. As Mrs. Moran died before the depositor, the tentative trust .for her died with her unless there was some unequivocal act or declaration of the depositor indicating her intention to make that trust absolute and irrevocable. (Matter of Bulwinkle, 107 App. Div. 331, and cases cited; Garvey v. Clifford, 114 id. 193.) The possession, then, of Mrs. McDermott under the conditions described must establish the unequivocal act by the depositor towards Mrs. McDermott within the rule of Matter of Totten (179 N. Y. 112, 126). But the possession of Mrs. McDermott does not, in my opinion, establish that she obtained the book from the effects of Mrs. Moran. . Mrs. McDermott asserted her property in the book by gift causa mortis. It does not appear why she failed to establish a gift. Delivery is essential to such a gift, and yet mere possession of the thing does not establish fhe gift. Hence, while her assertion of the gift would naturally involve her possession of the book, possession thereof would not establish the gift. She might then have gained possession from the alleged donor. But, in any event,' the conclusion that Mrs. McDermott obtained the possession from the effects of Mrs. Moran is avowedly put upon a presumption. Conceding all, we have but the fact that Mrs: Moran died in possession of the book. It is true that from Mrs. Moran’s possession the, presumption of delivery to her might arise. (Sawyer v. Warner, 15 Barb, 282, cited in Abb. Tr. Ev. [2d ed.] 498.) But we have as the result that the possession of Mrs. McDermott rests upon the- presumption that she obtained the book from Mrs, Moran’s effects, and tlm possession of Mrs. Moran gives rise to the ■ presumption that there was a delivery of the book to her by the depositor. Thus presumption is piled on presumption. Such .a mode of arriving at a conclusion of fact is generally, if not universally ^ inadmissible.” (United States v. Ross, 92 U. S. 283; Manning v. Insurance Co., 100 id. 698; O’Gara v. Eisenlohr, 38 N, Y. 296.) In Rawley v. Brown (71 N. Y. 89) it is said“ Possession of property alone, and without explanation, is evidence of ownership; but is the lowest species of evidence. It is merely presumptive, and liable to be overcome by any evidence showing the character of the possession, and that it is not necessarily as owner.” Indeed, the learned surrogate commented upon the sparsity of the proof, and suggested that there might naturally be other evidence. We- need not consider this question on the supposition that all available evidence was before: the court, and that a rehearing would be but repetition. For I think that the absence of other evidence was due to the fact that this question, was not directly litigated. The hearing proceeded as upon the ordinary objections to an accounting until a further hearing was had' on the objections of the special guardian, which were aimed at the inaction of the. administrator in not instituting' proper proceedings to determine the ownership of this deposit. Consequently the evidence adduced bore directly upon her conduct, and the facts marshaled by the learned surrogate upon the ownership of the. deposit were incidentally developed. Indeed, it does not appear that the estate of Mi'S. Moran was represented in this proceeding. I think, then, that the decree in .this respect should be reversed. Point is made that the surrogate has no jurisdiction of the matter inasmuch as it represents a claim for a debt against a third person. It is true that a Surrogate’s Court has no jurisdiction to determine the validity of such a debt. (Van Valkenburg v. Lasher, 53 Hun, 594, and cases cited; Meeks v. Meeks, 122 App. Div. 461.) On the other hand, I am not at all prepared to say that the surrogate upon an accounting has not jurisdiction to determine a question of the creation of such a trust when the question arises and all interested are parties to the proceeding. (Heaton Surr. § 1051, and authorities cited.) The matter may be committed to the learned surrogate for his consideration. Various other objections are made- to the decree and some are of merit. It seems that the administrator acted as if she was making an intermediate account, and that the original citation so ran, but that thereafter a proceeding for the provisional settlement of her intermediate account and the proceeding for the compulsory accounting were by order of, the surrogate consolidated.

While it is the duty of an appellate court to strive to modify and to affirm to the end that the labor and expense of a trial de novo may be saved, yet there is no cogent reason in a case like this, where the questions presented may be readily disposed of by the learned surrogate in a few hearings and where the decree cannot stand in important particulars, why the court should not order a rehearing rather than sift out and pass upon the various items of the account as if its primary function was to hold an accounting rather than to review.

I advise a reversal of the decree, with costs to the appellant.

Hooker, Gaynor, High and Miller, JJ., concurred. ■

Decree of the Surrogate’s Court of Kings county reversed, with costs to the appellant.  