#### Sarah E. Kelly, Appellant, *v.*The National Savings Bank of the City of Albany, Defendant, Impleaded with Franklin B. Beers and Harvey S. Bedell, as Executors, etc., of Kate V. Beers, Deceased, Respondents.

Third Department,

January 15, 1908.

Trust — bank deposit in trust for another — notice to beneficiary.

An order from a depositor to the treasurer of a bank to pay to the order of her daughter a specified sum “ on my account as per accompanying pass book,” being the full amount of the deposit, is *prima facie*a transfer of the amount, and by opening an account and pass book in the name of the mother in trust for the daughter the bank recognizes the daughter’s title to the fund.

Evidence that the daughter’s signature, she having no other funds in the bank, was pasted in the bank’s signature book next to her mother’s and that the daughter drew interest on the account giving a receipt for the same, which referred to the pass book by number and to her account "as per accompanying pass book ” leads to the conclusion that the daughter was notified of the trust by her mother aud that it became irrevocable.

A provision in .a will subsequently executed showing a different intent on the part of such depositor is ineffectual to change the transaction.

Cochrane and Chester, JJ., dissented, with opinion.

Appeal by the plaintiff, Sarah E. Kelly, from a judgment of the Supreme Court in favor of the defendant executors, entered in the office of the clerk of the county of Albany on the. 9th day of July, 1907, upon the decision of the court, rendered'after a trial at the Albany Special Term, dismissing the complaint upon the merits.

Countryman, *Nellis <& BioBois [Andrew J. Nellis*of counsel], for the appellant.

*Harris (& Rudd \Milton H• Merwin*and *William R. Rudd*of counsel], for the respondents.

Kellogg, J.:

The facts are substantially the same as in *Kelly*v. *Home Savings Bank*(103 App. Div. 141) except as to the transaction at the bank when the account and pass hook were changed. Prior to May 29, 1899, account No. 38,455 stood in this bank in the name of Mrs. K. *104Y. Beers and her pass book was in that form. Upon that day the pass book and account were.changed so as to read : “Mrs. Kat.e Y. Beers in trust for Sarah E. Kelly, her daughter.” The signature of Mrs. Beers, already appeared upon the signature book of the bank. The signature of Sarah E. Kelly, Burlington, Yt., is pasted into the signature book at the place where Mrs. Beers’ name also .appears. The bank also produces the\following paper, bearing the signature of Mrs. Beers, and which was delivered to it on that day: “Albany, N. Y., May 29, 1899V To the Treasurer of the National Savings. Bank: Pay to the order of Sarah E. Kelly, my daughter,. Three Thousand and int. Dollars on my account as per accompanying pass book No. '3845 5.” The amount .of this order represented the full amount of Mrs. Beers’ deposit at that time. . The stenographer of the bank produces the papers, but no one is sworn as to who was present at the bank or how these changes were made.' Mrs. Beers drew the interest from time to time, except July 17,. 1901, Sarah E-Kelly drew the interest upon the. following receipt: “Book No. 38455, Albany, N. Y:, Ju. 1.7, 1901. Deceived of National, Savings Bank -of Albany Fifty-two 50/100 dollars’ $52.50 on my account as per accompanying pass book, Sarah E. Kelly7.”

The stenographer .says that' “throughout this bank book are many sli'ps pasted in exactly7 as the slip with Sarah E. Kelly’s name on it, As a rule when an account is opened in two names or somebody7 else’s,, we give the person who.opens the account a slip to be signed by the Other party and mailed or brought to the bank. When the bank receives it they cut the signature -off and paste it in a book. Suppose we had a book like this which had been begun in 1893, and in 1899 a check is drawn like this one- in evidence, and both ladies are in the bank at the time, that are represented on. the check, we would then' paste- the signature of the one whose ñame was added right on the book by the old signature which had been placed there years before by the other, unless it-waS written in. "We would.do so assuming there was no' place for it to be written in.”

In- the view most favorable to the defendants this may be considered a tentative trust within *Matter of Totten*(179 N. Y. 112, 126), which is revocable until the depositor dies'or completes it by7 some unequivocal act or declaration, such as the delivery of the pass book or notice to the beneficiary.

*105Mrs. Kelly liad no funds in the bank except as she was interested in this deposit, and there was no other occasion for her leaving her signature with -the bank. She drew her check upon the'bank as the owner of the account, and must have presented the pass book with the check. Both the parties to the trust are silent, one by death and the other by the rules of law, and their intentions can only be gathered from the papers at the bank and their actions as far as-they appear. The order.given by Mrs. Beers upon the bank to pay to Mrs. Kelly *primo, facie*transferred the fund here, and when the account was opened in the name of Mrs. Beers as a trustee for Mrs. Kelly, it recognized Mrs. Kelly’s title and right to the fund. And Mrs. Kelly’s name in the signature boob, the check drawn by her and the inferences to be drawn from the papers at the bank, and the declaration of Mrs. Beers in evidence, leads to the conclusion that Mrs. Kelly was notified of the trust by Mrs. Beers and that the gift was complete and the trust irrevocable. The fact that the mother several years after and the day before her death, while with her son, made, a change in her will which indicated another intent, cannot affect the transaction which had already taken place. The judgment should be reversed upon the law and the facts and a new trial granted with costs to the appellant to abide the event.

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

Cochrane, J. (dissenting):

I do not think *Matter of Totten*(179 N. Y. 112) requires or justifies a reversal of this judgment. That case decides that a deposit by a person as trustee for another “ *standing alone** * * is a tentative trust merely revocable at will until the depositor dies or completes the gift in his lifetime by some unequivocal act.or declaration.” But when such deposit does not *stand*alone, but as in this case must be considered in connection with other circumstances, that presumption may be overcome and the deposit may not even amount to a tentative trust. In such a case as in others it resolves itself into a question of intent. The court in the *Totten*case, quoting "from *Beaver*v. *Beaver*(117 N. Y. 421), said : “ We are inclined to think that to infer a gift from the form of the deposit alone would in a great majority of cases, and especially where the deposit *106was .of .any considerable amount, impute an intention which never existed and defeat the real purpose of the depositor.” It was also said: *“*When a deposit is made in trust and the depositor dies intestate leaving it undisturbed, in the absence of other evidence, the presumption seems to arise that a trust was intended in order to avoid the trouble of making a will.” As to what was actually in the mind of the testatrix in making this deposit, see dissenting opinion in the case of *Kelly*v. *Albany Trust Co.*(124 App. Div. 101), decided herewith. The learned trial justice has found the facts in this case in accordance with the actual intent' of the testatrix and in my opinion the judgment herein should not be disturbed.

Chester, J., concurred.

Judgment reversed pn law and facts and new trial granted, with Costs to appellant to abide event.