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In re the Judicial Settlement of the Account of Davis

119 A.D. 35 Court Second Department, Decision date 1907-04-19 English

Delivered by Hooker, J.:

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p. 35
In the Matter of the Judicial Settlement of the Account of Marian Davis and John Delany, as Administrators, etc., of William H. Davis, Deceased, Respondents. Florence E. Mayer and Others, Contestants, Appellants.
Second Department,
April 19, 1907.

Headnote

Gift — deposit of moneys in trust for another—gift completed by delivery of pass book.
Although a deposit by one person of his own money in his own name as trustee for another, standing alone, does riot establish an irrevocable trust during the lifetime of' the depositor, yet when the depositor delivers the pass book to the beneficiary the gift is coinpleted and the trust becomes irrevocable.
Appeal by Florence E. Mayer and others from a decree of- the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 23d day of July, 1906, settling the account of the administrators of William II. Davis, deceased, by which it was adjudged that the three certain trust accounts on deposit, under tlie title, V Marian Davis, in Trust for William H. Davis,” belonged absolutely to the depositor, Marian Davis, on the death of William H. Davis, the beneficiary; that the said accounts are the property of Marian Davis, and that the judicial accounting should omit all reference to such accounts. Marian Davis was the wife of- William II. Davis, deceased. After the death of the latter there were found in his safety deposit vault the three savings bank pass books in question. There is no other evidence thamthat of the circumstances under which these bamk'books were found, tending to show what the intention of the depositor was.
Thomas M. Lowlette, for the appellants.
George A. Logan, for the respondents.

So far as appealed from, the decree of the surrogate should be reversed. . In Matter of Totten ( 179 N. Y. 112 , 125) the court has laid down the following rule by which controversies of this character must be decided: “ 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

p. 36
a tentative trust merely, revocable at will, until the depositor dies or completes the gift in. Ms lifetime by some unequivocal act or declaration, such as delivery of the pass booh or notice to the beneficiary.” William H. Davis, the beneficiary, died before tlie depositor,; Marian Davis, and before a revocation of the trust. ■Standing alone, the mere deposit of her money in her name, as trustee for him, did riot establish,- under the rule in the Totten case, an irrevocable trust; but the finding of the pass book in the safe deposit vault of the beneficiary necessarily implies that there was. notice by the depositor of the trust to the beneficiary. Inasmuch as notice to the beneficiary is one of the examples of an unequivocal act or declaration by which the depositor completes the gift, used by the Court of Appeals to illustrate the rule, we must hold that the notice to William H. Davis completed his wife’s gift to him and rendered the trust irrevocable. The funds, therefore, belonged to the deceased at the time of his death, and should be accounted for by the administrators.

The decree must be modified by directing that the administrators account for this money, with costs to the appellants to be paid out of the estate.

Hirschberg, P. J., Gaynor, Rich and Miller, JJ., concurred.

Decree of the Surrogate’s Court of Kings county modified in accordance with the opinion of Hooker, J., and as thus modified affirmed, with costs to the appellants to be paid out of the estate. Order to be settled before Mr. Justice Hooker. .

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