
    Margaret Matthews, Appellant, v. The Brooklyn Savings Bank, Defendant, Impleaded with Catherine McKenna, Individually and as Executrix of and Trustee under the Last Will and Testament of Mary Kelly, Deceased, Respondent.
    Second Department,
    June 14, 1912.
    Gift — deposit in savings bank in trust — delivery of pass book — notice ■ to beneficiary.
    In an action to recover certain moneys alleged to have been deposited by Mary Kelly, now deceased, in trust for the plaintiff, it appeared that the deceased accompanied by the plaintiff went to the defendant savings bank and opened an account in the name of “Mary Kelly, in trust for Margaret Matthews (cousin),” and delivered the pass book to the plaintiff for “safe keeping,” who, after about ten months, returned it; that six years thereafter, and just before her death, the deceased, having been, making withdrawals for nearly three years, had the balance of the account transferred to another account, which stood in her name individually.
    Held, that the opening of the account in the form stated and the delivery of the pass book constituted notice to the beneficiary rendering the trust irrevocable;
    That a judgment dismissing the complaint should be reversed and a new trial granted.
    Burr, J., dissented, with opinion.
    Appeal by the plaintiff, Margaret Matthews, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 27th day of May, 1911, upon the decision of the court rendered after a trial at the Kings County Special Term, and also from an order entered in said clerk’s office on the same day dismissing the complaint upon the merits.
    
      
      Charles Hafwood [Martin A. Driscoll, Jr., with him on the brief], for the appellant.
    
      Lewis C. Grover [James W. Redmond with him on the brief], for the respondent.
   Carr, J.:

This is an appeal from a judgment of the Special Term in Kings county that dismissed the complaint of the plaintiff after a trial of the issues. The action was brought by the plaintiff to recover certain moneys which had been deposited in a savings bank in Brooklyn in the name of “Mary Kelly, in trust for Margaret Matthews.” The facts appearing upon the trial, in the evidence offered by the plaintiff, were as follows:' Mary Kelly during her lifetime was unmarried, and quite advanced in years at the time of the transaction in question. She had had a sister, Annie Kelly, likewise unmarried and advanced in years. Sometime prior to July, 1904, Annie Kelly died, leaving a bank account in the Brooklyn Savings Bank in form as follows: “Annie Kelly, in trust for Mary Kelly.” On July 26, 1904, Mary Kelly went to the savings bank in question and transferred .the account formerly existing in the name of “Annie Kelly, in trust for Mary Kelly,” to a new account, in form as follows: “Mary Kelly, in trust for Margaret Matthews' (cousin).”

' When this account was opened Margaret Matthews was present at the savings bank with Mary Kelly, and saw the bank book representing the new account. The learned trial court found that on said 26th day of July, 1904, Mary Kelly delivered the pass book of the savings bank account in question to Margaret Matthews for “safe keeping,” and that Margaret Matthews retained possession of said pass book until about the 2d day of May, 1906, when it was redelivered. to Mary Kelly, who retained possession of the book thereafter until the account was closed. •

In 1907 Mary Kelly began to make withdrawals from the amount originally deposited “in trust for Margaret Matthews.” These withdrawals continued at intervals until April 23, 1910, when the account was finally closed and the balance remaining therein, to wit, $1,744.30, was transferred by' Mary Kelly to another account in the same bank which stood in her own name individually. Therefore, at the time of the death of Mary Kelly, in May, 1910, no part of the original deposit in trust for Margaret Matthews ” remained to the credit of said account.

It appears that Mary Kelly left a last will and testament at the time of her death, in which the defendant Catherine McKenna was appointed as executrix. The instrument in question was not offered in evidence, and there is nothing in the record before this court to show its provisions.

The plaintiff gave in evidence the testimony of several witnesses as to declarations of the decedent Mary Kelly after the opening of the original account, as to her purpose in opening such account in trust for Margaret Matthews.” The learned trial court evidently refused credence to the witnesses who testified in behalf of the plaintiff as to the alleged declarations of Mary Kelly, deceased, although as to one witness it gave credence as to one transaction she testified to, and refused it as to another transaction as to which she testified.

It is contended on this appeal that, on the findings of fact made by the trial court, judgment should have been awarded in favor of the plaintiff.

It would serve no very useful purpose to attempt to review the numerous cases which appear in our reports in relation to these savings bank trust accounts, in view of the elaborate consideration given to all preceding authorities by the Court of Appeals in Matter of Totten (179 N. Y. 112). In that case the Court of Appeals plainly endeavored to lay down a rule to cover all future controversies in court, in regard to cases of this character. This rule was announced in language as follows: “A deposit by one person of his own money, in his own name as trustee for another, standing alone, does not establish an irrevocable trust during the lifetime of the depositor. It is a tentative trust merely, revocable at will, until the depositor dies or completes the gift in his lifetime by some unequivocal act or declaration, such as delivery of the pass book or notice to the beneficiary. In case the depositor dies before the beneficiary without revocation, or some decisive act or declaration of disaffirmance, the presumption arises that an absolute trust was created as to the balance on hand at the death of the depositor. ”

The real question in this case is whether, within the rule so declared in the Totten case, the plaintiff has made out a cause of action. It is true, as was declared hy the learned trial court that while there was a delivery of this pass :b.o.ok to Margaret Matthews hy Mary Kelly, it was not necessarily a delivery for the purpose of divesting title, for it was accompanied at the same time by the delivery of another pass book in which Margaret Matthews had clearly no interest whatever, . tentative or actual, and that both books, under the testimony so far as the trial court would give it credence, may be considered as having been delivered to Margaret Matthews simply for the pupose of “ safe keeping. ” But within the rule declared in Matter of Totten, delivery of the pass book was not the only unequivocal .act that might make the transaction an actual and consummated trust. Among the acts which might produce this result, as specified by the court in that case, was “ notice to the beneficiary.”

It is true that just what form this “notice” .should take was not specified by the Court of Appeals, and wisely so, for each case of this character is dependent upon its own facts. Concededly there was notice here given by the depositor to the alleged beneficiary. The notice, so far as the testimony goes, extended simply to the opening of the account in the form in' which it was opened. The learned trial court thought that this was not enough, but that proof should be given to show that when the beneficiary was notified of the opening of the account, there was some additional statement or declaration by the depositor as to her intention in the opening of the account in that form, or otherwise the so-called trust would be nothing more than a tentative trust, revocable by withdrawal of the fund on the part .of the trastee during her lifetime.

In Matter of Davis (119 App. Div. 35) a savings bank account had been opened by one Marian Davis, in trust for William H. Davis. The apparent beneficiary had- died before the depositor and trustee. After his death the pass book representing the account in question was found in a safe deposit vault' rented by the beneficiary.. It was held by this .-court that the fact of finding the pass book in question in the safe deposit vault of the beneficiary was proof that he had received from the depositor or trustee notice of the opening of the trust account, and that, therefore, the trust became, not tentative and revocable, but absolute in favor of the apparent beneficiary.

On the strength of this authority this court is obliged to hold that on the facts found by the learned trial court, both in its decision and at the request of the plaintiff, the conclusion of law dismissing the complaint of the plaintiff was not justifiable.

The judgment should be reversed and a new trial granted, costs to abide the event.

Hirschberg, Thomas and Woodward, JJ., concurred; Burr, J., read for affirmance.

Burr J. (dissenting):

I dissent. Whether when Mary Kelly opened an account with the Brooklyn Savings Bank, in form “ Mary Kelly, in trust for Margaret Matthews (cousin),” her intention was to create an irrevocable or. only a tentative trust, is a question of fact. (Matter of Totten, 179 N. Y. 112.) While delivery of the pass book to the suggested beneficiary, or notice to her of the opening of an account in such form, are evidential facts bearing upon the question of intent, I do not think that they are necessarily conclusive. Particularly is this so when, as here, a court has found that the delivery to plaintiff was not an absolute and unqualified one, but only as custodian. As against the evidential facts of delivery of such a character, and notice, are the facts which are inconsistent with an intent to create an irrevocable trust, viz., that the pass book was redelivered to the depositor, and that in her lifetime she withdrew the whole of the sum on deposit and redeposited the same to the credit of an account in her individual name. The burden of proof was upon plaintiff to establish depositor’s intent. I think that the most that plaintiff can claim is that the circumstances pointed as much in the direction of an irrevocable as of a tentative trust. That is not sufficient to entitle her to recover.

Judgment reversed and new trial granted, costs to abide the event.  