#### Sarah E. Kelly, Respondent, *v.*Albany Trust Company, Defendant, Impleaded with Franklin B. Beers and Harvey S. Bedell, as Executors, etc., of Kate V. Beers, Deceased, Appellants.

Third Department,

January 15, 1908.

Gift — transfer of bank deposit — evidence.

B., a bank depositor, signed an order directing that the name of K. be added as owner and creditor of all moneys deposited or lobe deposited in a certain designated account, with full authority for each or the survivor to draw out the whole or any part. Each furnished the bank wi'h an authorized signature to *100be recognized in paying from the account. A bank book was issued indorsed on the outside “Special interest account with (B.)” and inside was written “Albany Trust Company in account with (B.) or (K.) payable to either or the survivor of either.” *No*withdrawal was made from the account. In an action by K. to recover the deposit after the death of B., evidence examined and *held,*that K. is entitled to the deposit.

In such action a codicil to the will of B. of subsequent date making a different disposition of the deposit is properly excluded for the. rights of the-parties had been previously fixed.

Cochrane and Chester, JJ., dissented with opinion.

Appeal by the defendants, Franklin B. Beers and another, as executors, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 26th day. of February, 1907, upon the decision of the court rendered after a trial at the Albany Special Term.

*Harris c& Rudd \Milton H Merwin*and *William P. Rudd*of counsel], for the appellants. ■

Countryman, *Nellis & Du Bois \_Andrew J. Nellis*of counsel], for the respondent. •

Kellogg, J.:

The facts in this case are substantially the same as in *Kelly*v. *Home Savings Bank*(103 App. Div. 141), except that no officer of the .trust company was sworn and the only evidence as to what took place at the trust company is the books and papers of the trust company, as follows: Exhibit B, dated- January 12,1903.— “ The Albany Trust Company will please add the name of Mrs. Sarah E. Kelly as owner and creditor with me of all moneys heretofore or which may hereafter be deposited in the said bank , under its account No. 2104, together with all the interest which has been or. may hereafter be credited to the said account, with full authority for each or either of us or the survivor of us to draw out from the said bank the whole' or any part of such moneys or such interest. (Signed) Mrs. K. V. Beers. Witness, A. P. Adams, Jr.” .

Exhibit C.— “ Albany Trust Co. Authorized signature of K. V. Beers. Please find authorized signature which you will recognize in payments of funds or the transaction of business, Special Account No. 2104, K. V.' Beers, Address 87 Livingston Ave. Endorsed by Charles Beeney. To the Albany Trust Company, Albany, N. Y.”

*101Exhibit D.— “ Albany Trust Co. Authorized signature Sarah Kelly. . Special Account No. 2104, Sarah Kelly. Please find authorized signature which you will recognize in payments of funds or the transaction of business. Sarah E. Kelly, Address 87 Livingston Ave. Endorsed by---. To The Albany Trust Co,, Albany,, N. Y.”'

It is also admitted that the bank book was issued September 5, 1902, in the name of Kate Y. Beers, and the writing underneath *“*Or Airs. Sarah E. Kelly, payable to either or the survivor of either,” was added January 12, 1903. Bank book No. 2104 produced was indorsed : “ Special Interest Account with Kate Y. Beers.” The reading on the inside was *“*No. 2104, The Albany Trust Company in account with Kate Y. Beers or Mrs.. Sarah E. Kelly, payable to either or the survivor of either.”

Within *Hallenbeck*v. *Hallenbeck*(103 App. Div. 107), *Augsbury*v. *Shurtliff*(180 N. Y. 138) and the *Kelly*case, above cited, the judgment is right. The codicil was properly excluded. It only disclosed Airs. Beers’ intent at the time it was executed. The rights of the parties had been previously fixed." The judgment should, ■ therefore, be affirmed, with costs.

All concurred, except Cochrane, J., dissenting in an opinion, in which' Chester,, J., coneuiTed.

Cochrane, J. (dissenting):

If this particular bank transaction stood by itself probably we should say that the decision of the court below should not be disturbed. But Mrs. Beers, the appellants’ testatrix, had various and similar bank transactions which are all in evidence and which should be considered as reflecting light on each other. It cannot effectually be gainsaid that a uniform purpose existed in her mind as to each one of -these transactions. As a matter of fact her intent in one was likewise her intent in all. ■ Clearly the plaintiff equitably and fairly should recover in respect to all of these transactions or be defeated' in respect to all. In this case I think the. learned trial1 justice attached too much importance to the form of the deposit in the bank and the papers there signed and too little importance to the other facts in the case. As is well understood, these bank transactions made under such circumstances as here appear are frequently *102merely formal and more to comply with the rules or customs of particular banks in the effort of the depositor to effectuate some particular purpose which he has in his mind than to reflect such purpose with accuracy or definiteness. The trend of recent decisions is to make such forms of deposits *prima facie*evidence only to be considered with all the other evidence as bearing on the actual intent. of the .depositor and that intent very frequently becomes a question of fact- notwithstanding the *prima facie*liability created - by the bank transactions when standing alone.' That was the purport of the decisions in *Kelly*v. *Home Savings Bank*(103 App. Div. 141); H*allenbeck*v. *Hallenbeck*(Id. 107); *Matter of Totten*(179 N. Y. 112, and cases there cited). That Mrs. Beers. intended to make a substantially equal division of lier property between her two children is" apparent from her wills and codicils wherein she bequeathed these bank deposits to her daughter, Mrs. Kelly, to make a bequest practically equal in amount to the bequest to her son. In her will executed in the - year 1900 she bequeathed to her daughter these bank cleposits with the important qualification that she intended-that ■ they should amount to about $7,000 and in case there should not be that amount on deposit at the time of her death that such amount should be made up out of her estate. If plaintiff’s contention is correct, she had a proprietary interest in- all these accounts during her mother’s life and might as owner have exhausted them before her mother’s death and then in addition, thereto she would be entitled to receive $7,000 under the will. I think the clear intent to be deduced from the various bank transactions and testanientary provisions was not that the plaintiff should have an immediate proprietary interest in the deposits but that she should be at liberty to draw therefrom as a matter of convenience for her mother and at the death of the latter the deposits should belong to the daughter. The admissions and declarations of the deceased in evidence are not at war with such theory but on the contrary they as well as the testamentary provisions harmonize therewith.

■ I think the judgment should be reversed on the law and facts.

Chester, J., concurred.

Judgment affirmed, with costs, "