
    In the Matter of the Estate of Johanna Kiley, Deceased.
    Surrogate’s Court, Westchester County,
    December 6, 1949.
    
      
      George Hinchcliffe for Thomas Kiley, as administrator of the estate of Johanna Riley, deceased, petitioner.
    
      John E. Tobin for Mary M. Kiley and another, respondents.
   Griffiths, S.

The administrator of the above-named decedent has instituted a discovery proceeding to recover the proceeds of a savings account which originally was in the name of Catherine Riley in trust for Johanna Riley. In the absence of some unequivocal act or declaration indicating an intent to make the trust irrevocable, such as the delivery of the passbook or notice to the beneficiary, such a deposit would create merely a tentative trust revocable at will. (Matter of Totten, 179 N. Y. 112.) And even though the beneficiary survived the depositor, the proceeds of such account would not become a part of the assets of the deceased beneficiary if the tentative trust were effectually revoked by the named depositor during her lifetime. The withdrawal of a savings bank deposit made by a person in his own name in trust for another amounts to a disaffirmance of the trust. (Tierney v. Fitzpatrick, 122 App. Div. 623, revd. on other grounds, 195 N. Y. 433.) The tentative trust was here disaffirmed by an effectual gift of the proceeds of said account evidenced by a delivery of the passbook and of an uncompleted withdrawal slip signed by the depositor followed by the withdrawal of the proceeds of such account by the donee prior to the death of the depositor.

The proceeding is accordingly dismissed.

Settle decree.  