
    Magdalena Grafing and Another, as Executrices, etc., Appellants, v. Catharine Heilmann, Respondent.
    
      Trusts — savings bank book — retention of the book — receipt of interest by the depositor during his life—presumption arising from the payment of a past of the fund,—what is not a testamenta/ry disposition.
    
    Where moneys have been deposited in a savings bank by a party (since deceased) in his name in trust for another, and the interest has been drawn by the depositor during his life, and a portion of the principal of the fund has been paid over to the cestui que trust, who received during the depositor’s life a letter of instruction as to the disposition to be made of the fund, the transaction constitutes a valid trust, and is not a gift.
    The fact that the depositor retained the hank book and drew the interest during his life, is not inconsistent with an intention to create a trust. —
    The fact that part of the money represented by the deposit was paid to the beneficiary by the depositor is not evidence of a loan, the presumption being that it was given in satisfaction of an antecedent debt.
    
      The fact that the money was intended to go to the beneficiary only on the depositor’s death, does not render the transaction a testamentary disposition, the interest of the defendant being vested at the time of the deposit.
    If, as a condition of the deposit, the defendant promised to pay any part of the deposit to others, such parties must pursue their own remedies against the defendant, and the executors of the deceased depositor are not charged with the duty of enforcing the execution of any such obligation.
    Appeal by the plaintiffs, Magdalena Grafing and another, as executrices, etc., from a judgment of the Supreme Court in favor of the defendant, bearing date the 8th day of July, 1895, and entered in the office of the clerk of the county of Kings, upon the decision of the court rendered after a trial at the Kings County Special Term, dismissing the plaintiffs’ complaint upon the merits, except from so much of said judgment as denies the defendant costs, and grants an extension of time to make and serve a proposed case on appeal and a stay of defendant’s proceedings.
    This action was originally commenced against the East River Savings Institution to recover $2,000 deposited therein by the plaintiffs’ testator in trust for Catharine Heilmann, who was subsequently interpleaded as defendant in place of the bank.
    The testator, Diedrick Grafing, between April 24, 1893, and May 29, 1893, deposited $2,000 of his own money with the East River Savings Institution, and received a pass book therefor in the name of “ D. Grafing, in trust for Catharine Heilmann; ” and also deposited $3,000 in the Metropolitan Savings Bank, receiving a bank book therefor, with a similar provision. The depositor regularly drew the interest on said deposits and used the same for his support down to the time of his death, which occurred in August, 1894.
    The complaint alleged that such deposits were not made by said Diedrick Grafing with any intent to create a present trust in favor of said Catharine Heilmann, but were made with intent on his part to remain the absolute owner of the fund during his lifetime, and in order that said Catharine Heilmann could draw the money after said Diedrick Grafing died, and distribute the same among certain relatives of his, including herself, in the proportion stated in a certain letter written by him and found among his papers; that said Catharine Heilmann was aware of such deposits and consented to ' the terms thereof, and thereafter admitted that she knew the above facts but refused to sign a paper agreeing to distribute the money whereupon the plaintiffs refused to deliver to her the bank books.
    The defendant, Catharine Heilmann, denied that she had consented to the terms, as set forth in the plaintiffs’ complaint, of the deposits therein mentioned, and denied that she had admitted that she knew the facts as stated in the complaint, and also denied that she refused to sign a paper agreeing to distribute the money as. stated in the complaint.
    The defendant alleged that the money deposited together witli the accrued interest was the property of the defendant, and that, she had demanded payment of the same from the bank, which demand was refused on the ground that defendant could not produce the bank book; and judgment was demanded that the defendant be declared to be entitled to said moneys so deposited, with interest, and also to the bank book mentioned in the complaint.
    
      Secor <& Page and Horace Becor, Jr., for the appellants.
    
      L. 8. Goebel and Edward W. 8. Johnston, for the respondent.
   Cullen, J.

At the close of the plaintiffs’ case the defendant submitted the cause on the plaintiffs’ evidence. The court made findings of fact, and of law. The case is, therefore, not that of a nonsuit, and it is not a question whether there was any evidence to support the plaintiffs’ claim, but whether the decision of the trial court on the facts and law was erroneous.

The contest is the not unusual one between the personal representatives of a deceased depositor and the beneficiary over funds represented by saving banks books, the deposits being made by plaintiffs’ testator in his name, in trust for the defendant. That such a deposit, even when the bank books are retained, in the absence of attendant circumstances indicating a contrary intent, creates a trust in favor of the beneficiary, is settled by authority. (Martin v. Funk, 75 N. Y. 134; Willis v. Smyth, 91 id. 297; Mabie v. Bailey, 95 id. 206, 207.)

The decision in Cunningham v. Davenport (147 N. Y. 43, 48) has no application to this controversy, for the beneficiary here has survived the depositor.

In tliis case the attendant acts of the deceased would seem conclusive of his intention to create a trust hi favor of the defendant. The deposits were made in April, 1893. The plaintiffs put in evidence a letter of the deceased to defendant, found among the former’s papers after his death, directing what disposition she should make of the moneys. In July, 1894, $2,000 was drawn by the defendant from one account and given to the defendant. There is no evidence that it was given to her as a loan, or that she promised to repay it. The mere payment of money is not evidence of a loan; the presumption is that it was given in satisfaction of an antecedent debt. (1 Phillips on Evidence [Cowen & Hill’s ed.] 675.) So in this case it was a recognition of defendant’s title to the money. The fact that the depositor drew the interest during his life is not inconsistent with an intention to create a trust. (Willis v. Smyth, supra.)

I do not know that the appellants seriously deny that the deceased intended the moneys should go to the defendant. Their mam contention is that the depositor intended to reserve the interest during his life, and that the money was to go to the defendant only on his death, and that either of these facts would render the attempt to create a trust void. The trial court refused to find either fact in favor of the plaintiffs, but had the facts been found, in my opinion, they would not have affected the result.

It must first be observed that the case presented is one of a trust, not of a gift. The distinction between the two cases is clearly pointed out by Judge Andrews in Beaver v. Beaver (117 N. Y. 421). It is, therefore, not subject to the difficulty that exists in making gifts where the donor retains any possession or interest in the subject-matter of the gift. (Young v. Young, 80 N. Y. 422, 438.) I can see no reason why the deposit might not have been made by the deceased with the qualification expressed on the face of the pass book, that the interest was payable to him personally during life, nor why such a deposit would not have been valid and effectual.

Nor if it were the fact that the nroney "was to go to the defendant only on the depositor’s death would that render the transaction a testamentary disposition. It is sufficient that the defendant’s interest was vested at the time of the deposit. (Van Cott v. Prentice, 104 N. Y. 55.) If as a condition for this deposit the defendant promised to pay any sums to others, such, parties must seek their own remedies against her. It does not affect her rights to the fund.

The judgment appealed from should be affirmed, with costs.

All concurred, except Brown, P. J., not sitting.

Judgment affirmed, with costs.  