
    Charles H. Hyde, Adm’r, Resp’t, v. George H. Kitchen et al., Ex’rs, App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 12, 1893.)
    
    Tiiust—Deposit in savings bank.
    In the absence of any evidence of contemporaneous facts or circumstances indicating a contrary intent, the inference must hold that a person depositing money in a savings hank, and taking a hook in his name in trust for another, intended to, and did, by such transaction create an irrevocable trust in favor of such other, and the latter’s administrator is entitled to the money so deposited.
    Appeals from two judgments entered on the decision of the court after trial of the issues at special term in actions to recover moneys deposited in the Manhattan Savings Institution of this city by Maria Van Vleck, now deceased.
    The following is the opinion at special term:
    Ingraham, J.—When the testatrix opened the account in the savings bank in question, a deposit slip was made out in the pres-
    
      ence of the depositor, which contained the name of the petitioner, and the names of Ada and Maria Hyde, nieces of plaintiff in this action. The bank book was also given .to the depositor at the time, on the outside cover of which was written the words: “ Mai'ia Van Vleck, in trust for Maria and Ada Hyde; ” and the account was headed: “Manhattan Savings Institution in account with M. Van Vleck, for M. and A. Hyde; and this book was delivered to the depositor, and retained by her. All of the subsequent deposits credited to this account were entered in this book at the time of each deposit by the bank officers. There is absolutely no evidence as to anything that happened at the time the account was opened, or any deposit made, that would in any way qualify the legal effect of this deposit, or show that the testatrix liad any intention contrary to that expressed by the form adopted in opening the account, and making the deposit. I do not think the subsequent declarations of the testatrix are competent evidence to show, as against this-plaintiff, that she had any other intention than that expressed by the transaction itself at the time the deposit was made; but, even if competent, I do not think they are sufficient to establish that she had any such intention. At the time the declarations were made the testatrix owned a boarding-house, and it does not appear but what she understood that this deposit really belonged to the plaintiff, or that she would have sufficient property to pay the bequest contained in her will. I think the case is clearly within the decision of the court of appeals in 'Martin v. Funk, 75 N. Y, 134, and that plaintiff is entitled to recover. The. defendants, however, are executors, and it was their duty to submit the question to be determined by the court, and, as the costs in this case are in the discretion of the court, I do not think costs should be allowed. Decision and judgment to be settled on notice.
    
      Thomas H. Cook (Joseph Fettretch, of counsel), for app’lt; Ladislas Karge, for resp’ts.
   Barrett, J.

The learned- judge at special term found as a fact that, in February, 1881, Maria Van Vleck deposited $170 in the Manhattan Savings Institution, in trust for the plaintiff’s intestate, John H. Hyde, who was her brother. This finding was based upon the undisputed testimony that, at the time of the deposit, a bank book was issued, and delivered to Mrs. Van Vleck, at her request, with the words, “ Maria Van Vleck, in trust for John H. Hy'de,” written upon the cover, and the words, “Maria Van Vleck, for John H. Hyde,” written within the cover. It also - appeared that the ledger account, which was then opened and kept by the bank, was in the name of “Maria Van Vleck, for John H. Hyde.” Other sums were deposited by Mrs. Van Vleck, and interest was credited to this account, from time to time, down to January, 1892, and during all that time the account continued in its original form. Mrs. Van Vleck, however, retained the bank book in her possession down to the time of her death, and the defendants, "her executors, have had it since. TjTpon this state of facts the learned judge found, as a conclusion of law, that there was an irrevocable trust in favor of John H. Hyde, and that the plaintiff, as his administrator, was entitled to the moneys in question. We think this conclusion was correct, and . we need add but little to the satisfactory reasons which the learned judge has given therefor.

The appellants concede that, if the well-known case of Martin v. Funk, 75 N. Y., 134, stood alone, they would not dispute the doctrine upon which this conclusion was arrived at. But they claim that later cases modify this doctrine, and hold that an intent contrary to that evinced by the surroundings of the original transaction may be established by later acts and declarations of the depositor, not in any way connected with the deposit. Mabie v. Bailey, 95 N. Y., 206, and Beaver v. Beaver, 117 id., 421; 27 St. Rep., 405; second appeal, 50 id., 69, are-cited as examples of the latter view. We have examined these cases carefully, but we find nothing in them to support the appellant’s contention. In Mabie v. Bailey, Judge Andrews said: “ The case of Martin v. Funk, 75 N. Y., 134, decided that a deposit made in the form of the deposit in this case constituted a trust, and, unexplained, operated to transfer the beneficial interest in the deposit to the beneficiary named, subject to the conditions of the trust to be implied from the circumstances.”

It is true that the learned judge suggested that the character of such a transaction was not conclusively established by the mere fact of the deposit, “ so as to preclude evidence of contemporaneous facts and circumstances constituting res gestae to show that the real motive of the depositor was not to create a trust” He nowhere intimated, however, that subsequent acts and declarations, not constituting res gestae, could be resorted to to show the depositor’s original intent. On the contrary, he held that the subsequent withdrawal of the deposits by the depositor was not legitimate evidence that he did not intend, when the deposits were made, to create a beneficial trust for the beneficiary named. “ It might,” he added, “ be competent evidence of a change of purpose, but it throws no light on the original transaction.” In Beaver v. Beaver there was no declaration of trust, and the case turned upon the validity of an alleged gift. Ho doubt is there expressed as to the correctness of the rule laid down in Martin v. Funk. On the contrary, that case was referred to with entire acquiescence in its trust doctrine. It was said that a declaration of trust could not be implied from a mere deposit by one person in the name of another. But it was conceded that such declaration could be implied from a deposit by one person in trust for another; and there was not a suggestion that such a trust was revocable, or that subsequent acts and declarations of the depositor, constituting no part of the res gestee, were admissible for the purpose of showing a contrary intent to that evinced by the original transaction and its surroundings. In the present case there was no attempt to vary the effect of the original transaction by contemporaneous facts or circumstances. The original transaction certainly constituted, under the rule so laid down in Martin v. Funk and Mabie v. Bailey, an unequivocal declaration of trust. Such was the inference, prima facie, at least, from the deposit in the form proved and found. Cases already cited. And see, also, Smith v. Lee, 2 T. & C., 591; Weaver v. Emigrant Industrial Savings Bank, 17 Abb. N. C., 82; Barker v. Harbeck, 17 St. Rep., 678. In the absence of any evidence of contemporaneous facts or circumstances indicating a contrary intent, that inference must hold. What the depositor may have subsequently said and done, words and acts not constituting res gestae, cannot affect the original transaction. They may show a change of purpose, but not of original intent. The evidence which was here admitted, comes within this principle, and that which was rejected was inadmissible, upon the same principle.

It follows that the judgment should be affirmed, with costs.

Van Brunt, P. J., and Follett, J., concur.  