
    Mary Cuff, Individually and as Administratrix, etc., of Thomas Cuff, Deceased, Respondent, v. Annie Cuff, an Infant, by Wyllys Benedict, Her Guardian ad Litem, and Others, Appellants, Impleaded with Others.
    First Department,
    June 28, 1907.
    Gift — deposit in savings bank in trust — death of depositor without revocation.
    If one deposits his own money in a bank in trust for his child and does not revoke the trust or indicate any intention to change the deposit before his death, the trust becomes irrevocable.
    A father opened various savings bank accounts in the following forms: “ Thomas Cuff, for daughter Annie” or “in trust for daughter Nora,” etc. He also made several deisosits in his own name, none of them, however, exceeding the sum upon which interest was allowed. Although he never delivered the bank books, there was evidence that he had stated that the deposits would go to his various children, and he died without any act of revocation.
    On the whole evidence,
    
      ■Held, that the trusts became irrevocable and the donees were entitled to the deposits as against the administratrix.
    
      Appeal, by the defendants, Annie Cuff, an infant, by Wyllys Benedict, her guardian ad litem, and others, from an interlocutory judgment of the Supreme Court in favor of the .plaintiff,, entered in the office of the'clerk of the county of Yew York on the 2d day of January, 1907, upon the decision of the court rendered after a trial at the Yew York Special Term.
    
      Artemas Ward, Jr., for the appellants.
    
      Carlisle Norwood, for the respondent.
   Ingraham, J.:

■ Thomas Cuff, a-resident of the City .of Yew York, died, 'on July 10, 1899, intestate, leaving a -widow, the plaintiff, -and five children, all infants under fourteen years of age. At the -time of his death he had on deposit in various ■ savings banks standing in his own name about $6,500, and sixteen accounts in various savings banks for his .children — three- accounts for his daughter Annie, amounting to-about $5,800'; three accounts for his daughter Nora, amounting to about $4,800 ; four' accounts .for his son. Thomas, amounting to about $5,200; two accounts for his. son William, amounting to about $2,200, and one account for his son John,'amounting-to about $600. . The bank binóles representing these various -accounts were in the possession of Thomas Cuff, and he retained possession of them-' down to -the time of his death. The deposits represented substantially his entire property.. The court found that in opening these accounts and making the deposits lie had no ihtentioii of creating trusts or giving the money só deposited to the persons mentioned in the bank books, but in order that he might get interest on the deposits, and, as a conclusion of law,, that the .money deposited by Thomas Cuff iri the various savings banks and purporting to be in trust are a part of his general estate and subject.to distribution among the parties entitled pursuant to the Statute of Distributions., From tlié judgment entered-on this decision the guardian ad litem for Annie, Yora and Thomas Cuff, children of the deceased, appeals.. •

The accounts in these savings banks were opened at Various dates between 1889 and the time of his death. ' The first account in the .Emigrant Industrial Savings Bank was, opened in the year 1896, and was in form': ■“ Thomas Cuff, for daughter Annie.” In 1903 he opened an account in the same bank in the name of “ Thomas Cuff, for son Thomas.” On June 1, 1903, he opened an account in name of “Thomas Cuff, for dau. Horaln” In 1896 he opened an account in name of “ Thomas Cuff, for wife Mary.” In 1887 he opened an account in the same bank in his individual name, in which, at the time of his death, there was a balance of $1,364.97. The only individual account he had in this bank was this last named account which was opened after the account for his daughter Annie and did not at any time approximate to the limit that could be deposited in that bank and draw interest, which was $3,000. In 1889 he opened an account in the Bank for Savings in the City of New York “ In trust for daughter Annie.” In 1899 he opened an. account in this bank “ Intrust for daughter Hora.” In 1899 he opened an account in the same bank “In trust for son Thomas, Jr.,” and in 1898 he opened an account in this bank “ In trust for son John,” and in the same year opened another account in this bank.“In trust for son William.” In 1888 he opened an account in the Bank for Savings in his own name in which there was at the time of' his death a balance of $1,545.32: In 1888 he opened an account in the Bowery Savings Bank in his own name in which at his death there was a balance of $3,029.47. In 1891 he opened an account in the same bank “In trust for Annie Cuff;” in 1893 an account “In trust for Hora Cuff;” in 1895 an aceojmt “In trust for Thomas Cuff, Jr.;” and in 1897 an account “ In trust for William Cuff.” In the Union Dime Savings Institution in 1889 he o¡Dened an-account in his own name which continued to the time of his death, and in the same bank in 1896 he Ojsened an account “ in trust for Thomas Cuff, Jr.” In ' none of these accounts opened for his children did he ever make any drafts, but in most of them he made deposits from time to time. On the part of the ¡Dlaintiff there was evidence of declarations made by the deceased, in which he said he intended to use his money to buy a house, and that when he got $35,000 he would buy a house of his own and live in it. About 1896 lie said that if he knew of any good safe offer lie would, buy a house at a reasonable ¡Drice; that he had in the neighborhood of $20,000 or $25,0.00 that he could ¡nit in a house; and that he subsequently looked at several houses, -that he had money in various savings banks and said that he would like to get" it altogether and put it in a good flat where he could gét more interest on, it than he could in the. savings banks; that he had the money in the children’s names. Most of these •accounts in the banks Were opened after these conversations. There was also- evidence that lie stated to a sister-in-law that he had money in the banks "in each of the children’s names; that he was going to invest the money that he had in the banks in a house.; that lie wanted to pay $25,0.00 " or $30,000, which would ■ be free and clear; that he wanted to draw the most interest he could, to get the. most lie could for his money. On behalf of the defendants- it was proved that about four years before the deceased died lie- said to his brother that his wife’s sister-in-law or sisters would come to get money and they were ordered out of the house that he would never leave a cent to this drunken crowd, ■ lie would have it1 all for the .children; that three years before he died he said that a Mrs., Mahonéy, who was-a witness for the plaintiff, was "trying to get .him to buy a house; "that lie did not care to invest money in any property where his wife would have to sign her name if he wanted to sell - it; subsequently lie took his brother to’look at a house but afterwards ' .- said that he had determined that he would not- buy it but he would leave the money where it was ;' that it was a safer place where it was. To a nephew who Was in .the habit of taking his bank .books to the banks to have the • interest written up he 'stated that the deposits were intended for his children ; that- that was-the' method he took to protect them ; that he 'Was going to leave his money so fixed for liis children that his wife would not get it and ppend it on her reía- ' tions or herself; that he liad many conversations of that kind from 1892 doWn to the time of his death. ' Annie Cuff, a daughter. of the deceased, testified that she was twelve years of age when'her. father died ; that her father often showed her the bank books and said that when she was twenty-one years of age she would get the money, and also showed "her the bank books in the names of "the other children ; that the last conversation she had of this kind with -• the decéased was :on the fourth of July before his death; that ller father told her he had all the money in the bank for the witness and his other children." ISTora Cuff, another daughter, testified that she saw her father-show the books-to her eldest sister and- tell her sister that when she was twenty-one years of age she would have money and would also say to the witness that when she was twenty-one years of age she would get some too.

The question in relation to deposits of this character was settled-by the Court -of Appeals in Matter of Totten (179 N. Y. 112). In that case it was said (p: 126): “.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 on hand at the death of the depositor.” The theory upon which it is attempted to sustain this judgment is that the accounts were opened in the names of the children in order to get more interest than-the deceased could get, but this is not at all- sustained by the evidence. In but one of the banks did he have an individual account that was anywhere, near the limits of such accounts. The evidence that is furnished as to these declarations about the interest is furnished by his wife’s relatives whose interest, if any, is in favor of the wife obtaining this money rather than that it should be devoted to the children of the deceased.' The testimony of the brother and nephew of the deceased, who had no possible interest, would seem to indicate that it was the desire of the deceased that this money should be preserved for his children. Taking the whole testimony together I think it is quite clear that the finding of the trial court that the deceased did not intend to create trusts in favor of his- children was not sustained by the evidence. Assuming that he intended to reserve the power to revoke these trusts at any time before his death, his failure to revoke them or indicate any intention to change the deposits that he had made, and the deceased dying leaving his children surviving in -whose favor he had made the deposits, makes the trusts irrevocable.

It follows that tlie judgment appealed from must be reversed and a new trial ordered, with cost's to the appellants to abide the event.

Patterson, P. J., Clarke, Houghton and Lambert, JJ,, concurred.

Judgment reversed, new trial ordered, costs to appellants to abide event,  