
    Mary V. Hessen, Respondent, v. James A. McKinley, Appellant.
    First Department,
    March 7, 1913.
    Trust — savings bank deposit in trust for another — when tentative trust does not become irrevocable—right of depositor to withdraw fund.
    Where one deposits his own money in a savings bank to his own credit “in trust” for another, a niece, and personally receives and retains the pass book, a tentative trust is created, revocable at will. It can be made irrevocable only (a) by some specific act or declaration by the. depositor, or (b) by the death of the depositor before the beneficiary without revocation.
    Where such tentative trust has not become irrevocable as aforesaid the depositor may draw out the money during his lifetime without liability to the beneficiary.
    Where the pass book was never delivered to the beneficiary mere declarations of the depositor to her and to other persons to the effect that the fund was to become hers when she reached majority did not render the trust irrevocable so as to prevent the depositor from withdrawing and appropriating the fund before the majority of the beneficiary. Lacjghlin and Scott, JJ., dissented, with memorandum.
    Appeal by the defendant, James A. McKinley, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York" on the 2d day of December, 1912, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the complaint.
    
      Clarence K. McGuire [Raymond Reubenstein with him on the brief], for the appellant.
    
      Michael J. Joyce, for the respondent.
   McLaughlin, J.:

Defendant demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled and he appeals.

The facts set out in the complaint are, in substance, that the defendant, a maternal uncle of the plaintiff, on the 28th of December, 1905, opened an account in the North Kiver Savings Bank -by depositing the sum of five dollars to the credit of “ James A. McKinley in trust for Mary Hessen ” (this plaintiff) and received a pass book No. 92,Ml; that from time to time thereafter up to the 29th of January, 1908, other deposits were made by him to the credit of this account, which, together with the interest thereon, amounted in July, 1908, to $2,529.78. that on the 3d of September, 1908, he withdrew this amount from the bank; that after the account had been opened defendant on several occasions exhibited the pass book to her “and acknowledged and declared to her and to other persons that the amount of the account in said savings bank was for her and intended by him to be for her, and that upon her coming of age she would be entitled to get the same as her property; ” and that at the time the account was opened plaintiff was sixteen years of age and became twenty-one years of age on the 2d of November, 1910. The complaint further alleges that after she became of age she demanded that the funds withdrawn from the bank by the defendant be replaced or turned over to her, which was refused. The judgment asked is that the savings bank account and all the funds deposited therein, together with the interest thereon, be declared to have been an irrevocable trust created by defendant for the sole benefit of the plaintiff; that an accounting be had between the parties; and that defendant, as trustee for the plaintiff, be directed to forthwith restore and pay to her the amount found due.

In Matter of Totten (119 N. Y. 112) the court formulated the rule which was to be applied in determining the rights and interests of parties in savings bank accounts similar to the one here under consideration. It said: ££ 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 oh hand at the death of the depositor.”

Under this rule the deposit in the form in which it was made created a tentative trust, revocable at will. It could be made irrevocable only (a) by some specific act or declaration by the depositor, or (b) by the death of the depositor before the beneficiary without revocation. It is urged that this rule does not apply since the defendant, prior to the time the ■ money was withdrawn and the plaintiff became twenty-one years of age, exhibited the pass book to her and declared to her and others that the amount of the account was for her and intended to be for her, ££ and that upon her coming of age she would be entitled to get the same as her property.”

The passbook, according to the allegations, was not delivered to the plaintiff, and the declarations of the defendant were not in my opinion sufficient within the rule above quoted to create an irrevocable trust. At most they indicated an intention on the part of the defendant at the time they were made that the plaintiff was to have the money represented by the pass book when she became twenty-one years of age. There are no allegations in the complaint or any from which it can be inferred that the defendant intended to give the fund or any interest therein to the plaintiff in praesenti. The declaration that the plaintiff was to have the property when she became twenty-one years of age negatives the idea that any present interest in the deposit was to pass to her until that time. The declaration in each instance was “upon her coming of age she would be entitled to get the same as her property.” Prior to her becoming twenty-one years of age it was a tentative trust merely, revocable at will. The fact of the withdrawal of the fund before the plaintiff reached her majority was a decisive and conclusive act of disaffirmance on the part of the defendant.

Tierney v. Fitzpatrick (122 App. Div. 623) in some respects is quite like the present case. There it was sought to take the case out of the rule laid down in Matter of Totten (supra) by showing that the depositor took the pass book to the house of the plaintiff and stated to him, “Here, Frank, here is the book. I have started an account in the bank, so if anything would happen to me you would have something to fall back upon. * * * ” And then the book was put in a safe in plaintiff’s house, to which the depositor also had access. It was held that such declarations and act did not make the trust irrevocable inasmuch as it negatived the idea that any present interest was to pass to the cestui que trust during the lifetime of the depositor. It is true that the decision of this court was reversed (195 N. Y. 433), but solely upon the ground that the trial court erred in admitting evidence of declarations made by the depositor after the money had been placed in the savings bank to the effect that the reason he had opened the account in the form which he did was that he already had as much money in the bank in his own name as he was permitted to draw interest upon.

Matter of Pierce (132 App. Div. 465) does not seem to me to "be in conflict with the views above expressed. There a father deposited money in a savings bank in trust for his children; placed the pass book in a safe deposit box to which they had access, and stated that the deposit would belong to them when they arrived at their majority. After all of the children had become twenty-one years of age he stated to one of his children, in reply to a request that the account be transferred to her, that the accounts already belonged to her, since she was twenty-one years of age, but she had better leave them as they were so that he could take care of them when he took care of his own accounts. The accounts remained as they were until after the father’s death, and it was held that the gifts became irrevocable prior to his death and for that reason were not subject to a transfer tax. In that case there appeared a present intention on the part of the father to make the gift. They were to have the money when they arrived at twenty-one years of age. After they became twenty-one years of age his declaration was that the money belonged to them.

The judgment appealed from, therefore, is reversed, the demurrer sustained, with leave to plaintiff to serve an amended complaint upon payment of the costs in this court and in the court below.

Ingraham, P. J., and Clarke, J., concurred; Laughlin and Scott, JJ., dissented.

Laughlin, J. (dissenting):

I am of the opinion that the proper construction of the statement by the settlor of the trust is that the trust was to terminate when the beneficiary attained the age of twenty-one years, and not that it was revocable. I, therefore, dissent.

Scott, J., concurred.

Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs.  