
    Huldah B. Hallenbeck, Appellant, v. Albert C. Hallenbeck, Individually, and Others, Respondents.
    
      Savings bank passbook — account in the name of the depositor and her niece payable “to either or the survivor of either”—it prima facie establishes title in the niece who survives her aunt — the niece’s claim will be sustained by the consideration of services rendered by her.
    
    On October 7, 1897, Huldah Van Aernam informed the teller of the Albany County Savings Bank, in which she had an account, that she wished the name of Huldah B. Hallenbeck, her niece, added to her passbook so that either of them or the survivor could draw the money. The said Huldah Van Aernam then signed the following instrument and delivered it, together with the old passbook, to the hank:
    “The Treasurer of the Albany County Savings Bank will please add the name of my niece, Huldah B. Hallenbeck, as owner and creditor with me of all moneys heretofore or which may hereafter be deposited in said bank under -its account No. 13413, together with all the interest which has been or may hereafter be credited to the said account, with full authority for each or either of us, or the survivor of us, to draw out from the said bank the whole or any part of such moneys or such interest.
    • “(Signed) HULDAH VAN ABEN AM.”
    A new passbook was issued which read: “Huldah Yan Aernam or Huldah B. Hallenbeck. Pay to either or the survivor of either. In account with Albany County Savings Bank, Albany, N. Y.”
    No new deposits were made in the account from the time it was opened until the death of Huldah Yan Aernam in 1903, hut the interest was credited semiannually. Two withdrawals from the account, one in 1899 and one in 1900, were made by Huldah B. Hallenbeck, who according to the rules of the bank must have produced the bank book at the time of making such withdrawals. On the death of Huldah Yan Aernam the passbook in question was found in her private box, the key of which had been in her possession or that of her custodian for more than a year prior to her death.
    Upon the trial of an action brought by Huldah B. Hallenbeck to recover the amount of the deposit, the trial court found that Huldah Yan Aernam intended to give the bank book and the deposit represented by it to Huldah B. Hallenbeck, hut held as a matter of law that she had failed to do so and accordingly dismissed the complaint. The trial judge stated in his opinion that he attached no importance to the language of the instrument signed by Huldah Van Aernam directing the change in the form of her account.
    
      Held, that the judgment should be reversed on the law and the facts;
    That there being no evidence that Huldah Yan Aernam did not perfectly understand the effect of the instrument which she signed and delivered to the bank, the language and effect of such instrument could not be ignored;
    That the form of the account invested Huldah B. Hallenbeck with a prima facie title to the money deposited therein and that before such prima facie title could be destroyed there must be a finding that the change in the account was made for some other purpose than to pass title, for example for the convenience of Huldah Van Aernam in making withdrawals;
    That if there was an understanding that such transfer and change of account was in payment for services, such consideration, however slight, was good as between the parties and passed irrevocable title to the fund.
    Appeal by the plaintiff, Huldah B. Hallenbeck, from a judgment of the Supreme Court in fav.or of the defendants, entered in the office of the clerk of the county of Albany on the 17th day of June, 1904, upon the decision of the court rendered after a trial at the Albany Trial Term, the jury having been discharged, dismissing the plaintiff’s complaint upon the merits.
    The action was brought against Albert C. Hallenbeck, individually, Albert 0. Hallenbeck and William T. Beebe, as executors of the last will and testament of Huldah Van Aernam, deceased, and the Albany County Savings Bank, to recover certain moneys on deposit in said bank in an account designated “ Huldah Van Aernam or Huldah B. Hallenbeck. Pay to either or the survivor of either.”
    
      Patrick C. Dugan, for the appellant.
    
      John D. White and Peter A. Delaney, for the respondents.
   Houghton, J.:

For several years Huldah Van Aernam had had an account in the Albany County Savings Bank, and on the 7th- of October, 1897, she told the teller of the bank that she wanted the name of the plaintiff, her niece, added to her passbook so that either of them, or the survivor, could draw the money then on deposit by her. The teller produced a printed form, used by the hank in such cases, filled it out, and Huldah Van Aernam signed it and delivered it to the teller, together with her old passbook. The written directions for change of account were as follows :

Get. nth, 1897.

“ The Treasurer of the Albany County Savings Bank will please add the name of my niece, Huldah B. Hallenbeck, as owner and creditor with me of all moneys heretofore or which may hereafter be deposited in saicl bank under its account No. 12413, together with all the interest which has been or may hereafter he credited to the said account, with full authority for each or either of us, or the survivor of us, to draw out from the said hank the whole or any part of such moneys or such interest.

“ (Signed) HULDAH VAN AERNAM.”

The new passbook issued in place of the old was the number 12,413, and read:

“ Huldah Van Aernam or Huldah B. Hallenbeck. Pay to either or the survivor of either. In account with Albany County Savings Bank, Albany, N. Y.”

The balance taken from the old account on October seventh was $1,675. No new deposits were made to this account from the time it was opened up to the death of Huldah Yan Aernam in 1902, the interest alone being credited semi-annually. Two withdrawals were made by the plaintiff, who, according to the rules of the bank, must have produced the bank book, one in 1899 and one in 1900.

At the time of the change in the deposit Huldah Yan Aernam was eighty-eight years of age, and lived in the country several miles distant from the savings bank. She had been possessed of a considerable amount of money and had no descendants, and from time to time had conveyed property and given various sums of money to various collateral relatives. Subsequent to the change of the account she declared to a friend on several occasions that the plaintiff had been very kind and considerate of her, and that she was going to do well by her as she had or intended to do by others, and that she had a bank book for her (plaintiff) and that the bank book was her’s ” (plaintiff’s)'.

On the death of Huldah Yan Aernam the bank book in question was found in a private box of her own in which she kept other papers belonging to her, the key to which had been in her possession or that of her custodian for more than a year prior to her death.

The trial court found that Huldah Yan Aernam intended to give the bank book and the deposit represented by it to the plaintiff, but as matter of law failed so to do and dismissed the complaint.

There was evidence given by the witness White of declarations of the plaintiff to him from which, standing alone, it might be inferred that it was the intention of Huldah Yan Aernam, understood by the plaintiff, that the change in the account was made for the convenience of Huldah in the withdrawal of the money ; but the trial court made no finding of fact relating thereto.

The case of Augsbury v. Shurtliff (180 N. Y. 138) contains the latest expression of the Court of Appeals upon this troublesome class of cases. In that case a husband and wife each had accounts in a savings bank, and both signed a written direction to the bank to merge their accounts into an account running to the one or the other or the survivor, adding that the object was to so change the accounts that in case of "the death of either the other might draw the whole amount. The wife died, and the question arose whether this direction to the bank was delivered by the husband to it and the account changed before or after the wife’s death. The trial court had dismissed the husband’s complaint, but the Court of Appeals held that this was a material question which should have been submitted'to the jury, and reversed the judgment. In the course of the opinion Haight, J., says : “ There are no words here indicating any present gift from one to the other of any portion of the funds on deposit in the bank. On the contrary, it is apparent that each in his or her lifetime intended to retain the fund so that either could draw upon their deposits as their necessities might require, but it is apparent that they intended that upon the death of either the other should be permitted to draw the whole amount. The purpose for which the survivor might draw the whole amount is not specified. In the absence of evidence upon the subject the inference might be permissible that it was their intention to give the survivor the right to draw the whole amount, so as to make it his or her own property. Assuming this to be so, the effect of the paper was, therefore, a written order addressed to the bank requesting it to change their respective deposits so as to make each the joint owner of the entirety, analogous to a joint tenancy or tenant by the entirety in real estate, so that upon the death of one the survivor became the owner of the whole. * * * This brings us to a consideration of the question as to whether the order is deemed to be revoked by the death of Mrs. Boof before it was delivered to the bank and the change in the deposits made. The order was executory until its delivery to the bank- and the changes in the deposits were made. It, consequently, could be revoked by either party at any time before the order had been complied with.”

The opinion continues with a discussion of the lack of the essential features of a gift inter vimos or one ecmsa mortis, and concludes that whether or not the order was delivered to the bank during the lifetime of the wife was a material question of fact which should have been determined by the trial court. A portion of the court, while concurring, concluded that there was a still further question as to whether or not each had actually transferred to the survivor what should be left of the bank account upon the death of the one first dying. ^In the course of such concurring opinion Yanh, J., says : “ Considering that the relation of husband and wife existed between these persons; that they had no near relatives; that they had made mutual wills; that they had both reached extreme old age; and that their bank accounts were substantially equal in amount, and reading the letter of instructions in the light of these facts, I think that the question of fact arose whether each had transferred to the survivor his or her bank account, or what should be left of it upon the death of the shortest liver. * * * It (the letter of instructions) may have been drawn for some other purpose, such as mere convenience, but it was for the jury to say under all the circumstances.”

We can see no practical difference in the effect of the instructions for change of account in the above case from those in the case at bar. Both are plain directions to change the account and make it a joint and several one, with the right in the survivor to draw what may remain. The instructions were delivered, acted upon, and the new bank book delivered years before the death of the original depositor; and the plaintiff had drawn money from the deposit on two several occasions. Even if the new bank book at all times was in the possession of Huldah Van Aernam, the withdrawals must have been with her assent, for none could be made without presentation of the book.

The trial court in his opinion (44 Misc. Rep. 109, 111) says that he attaches no importance to the language of the paper signed by Huldah Van Aernam, authorizing and directing the change in the form of her account. There is no evidence that she did not perfectly understand the effect of the paper when she signed it and delivered it to the bank, and it in fact effected precisely what she announced she desired to have done. The language and effect of an instrument executed under such circumstances cannot be ignored. Huldah Van Aernam, before this change of the account, had declared that the plaintiff had done much for her and that she intended to do well by her. Under such conditions, in view of the solemn execution of the paper, it might well be said that Huldah Van Aernam intended to and did transfer whatever should remain on deposit at her death absolutely to this plaintiff. If there was an understanding that such transfer and change of account was in payment of services, however slight the consideration may have been, it was good as between the parties and passed irrevocable title to the fund.

The plaintiff was entitled, in the absence of any evidence overthrowing or limiting it, to have considered in her favor the full language of the instructions for the change of the account. The form of the account gave her prima facie title. Before this could be destroyed there must have been a finding that a change in the account was made for some other purpose than to pass title, for example for the convenience of the original depositor in drawing. These facts not having been found or passed upon by the trial court, a dismissal of the complaint was unwarranted, and the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, except Parker, P. J., and Smith, J., dissenting.

Judgment reversed on law and facts, and new trial granted, with costs to appellant to abide event.  