Ruet v. Ruet — 28 A.D. 553

Majority

p. 553

Nicolus J. Ruet, Appellant, v. Nellie Gertrude Ruet, Respondent, Impleaded with Nicolus J. Ruet, as Administrator, etc., of Augustine Ruet, Deceased.

Headnote

Trust—proof entitling a, son to recover Ms personal earnings deposited by Ms mother in a savinas bank in her name—any declaration is sufficient to establish a trust of personalty. '

Proof that a sum of money on deposit in a savings hank to the credit of a deceased woman consisted entirely of the personal earnings of her son, of which the son had constituted his mother the custodian, who was to return the money to him upon his request, and that she repeatedly, recognized his ownership thereof, is sufficient to establish the son’s right to recover in an action in equity brought by him to establish his title to such money, and it is not necessary for the son to prove the declaration of any trust in respect thereto.

p. 554

Any declaration, however informal, will suffice to establish a trust in personal property provided it clearly manifests the intention to do so of the person malt- ■ ing it. .

Appeal by the plaintiff, Nicolus J. Kuet, from a judgment of the Supreme Court in favor of' the defendant, Nellie Gertrude Kuet; entered in the office of the clerk of the county of Kings on the 7th day of December, 1897, upon the decision of the court rendered after a trial at the Kings County Special Term, as amended by an order made at the Orange County Special Term, and entered' in the office of the clerk of the county of Kings on the 28th day of December, 1897, which judgment was entered upon, findings directing a dismissal of the complaint at the conclusion of the evidence for the plaintiff, with notice of an intention to bring up for.review upon such appeal so much of said order as orders that the motion for the amendment of the decision and findings made in the action on October 29, 1897, "and of the judgment entered on the 7th day of December, 1897, be denied in- all respects, except só much thereof ■ as is stated in said order to be granted.

Bruce R. Duncan, for the appellant.

H. B. Woods, for the respondent.

This is a suit in equity in which the plaintiff seeks to establish his title to certain moneys which were on deposit in a savings bank in the name of his mother at the time of her- death. The defendant claims half the fund as the child of a-deceased brother of the plaintiff. The learned trial judge dismissed the complaint at the close of the plaintiff’s case, saying : “ I will find that the deceased made' no declaration of a trust. There is not a word of evidence to indicate it,” •

This disposition of the action must have proceeded on the assumption that the plaintiff could not succeed in the suit unless he proved a declaration of trust on the part of his mother. .Even so, Í am inclined to think that the plaintiff had made out his case ■ in view of the rule that any declaration, however informal, will suffice to establish a trust in personal property, provided it clearly manifests the intention of - the person making it. (Day v. Roth, 18 N.

p. 555

Y. 448 , 453.) But it was not necessary that the plaintiff should prove the declaration of any trust at all. He alleged in his complaint that the money in the savings bank was his property; that he placed it in the hands of his mother, to be held and kept by her for him, and to be returned to .him at any time upon his request; and that at the time of her death she had it on deposit in the bank. These allegations were amply supported by the proof, which showed that the sum' in bank was wholly made up of the plaintiff’s personal earnings, of which he had constituted his mother the custodian, and that she repeatedly recognized his ownership thereof. Without reviewing the testimony in detail, it is enough to say that, upon the record before us, the plaintiff’s case is established with such cogency that the decision against him must be regarded as so clearly against the evidence as to demand a reversal of the judgment on the facts.

All concurred.

Judgment reversed on the facts and the law and a new trial granted, costs to abide the final award of costs.