#### William A. Jennings, Administrator, Etc., of Henry W. Jennings, Deceased, Plaintiff, *v.*Walter E. Hennessy, Individually and as Executor, Etc., of Hannah Krauth, Deceased, Defendant.

(Supreme Court, New York Trial Term,

February, 1899.)

Trusts — Revocation o£ savings bank book trust — Mental competency of aged donor.

A trust, created by a savings bank depositor with her own money, and consisting merely in a designation of the beneficiary on the face of a bank book, is revocable, and her final designation in the matter, when accompanied by the delivery by her of the bank book to the final beneficiary, must govern the disposition of the fund after her death. Where a woman, aged eighty-two, understands the nature of her act in transferring her bank account and is understood by bank officials, the fact that she was officially declared incompetent, as of a date two years later, does not show her incompetency at the date of the transfer.

Action in which interpleader was ordered to try title to fund on deposit.

Eugene H. Pomeroy, for plaintiff.

James A. Lynch, for defendant.

McAdam, J.

The issues arising on the interpleader were at the trial narrowed down to the single question whether the money on deposit in the Bowery Savings Bank belonged to the plaintiff or to Walter G. Hennessy individually, and this is all that need he considered. The account was originally opened by Mrs. Krauth in her own name, December 28, 1876; was changed to “Hannah Krauth in trust for Ann Eliza and E. M. Valentine,” December 10, 1879; was restored to her own name February 11, 1881; and *266was changed to “ Hannah Krauth in trust for William G. Hennessy,” March 11, 1885. On July 30, 1890, she surrendered the book containing this account to the bank, and received a new book,, which was made out at her request to “ Hannah Krauth in trust for Henry W. Jennings,” The trust in favor of Hennessy, like the one previously made in favor of the Valentines, was voluntarily created by Mrs. Krauth, of her own money, and was revocable by her at will. Cunningham v. Davenport, 147 N. Y. 43. It was effectually revoked when she surrendered the bank-book and opened a new account designating a new beneficiary. But Mrs. Krauth in this instance did more than change the beneficiary. She delivered the bank-book containing the new account to Mr. Jennings as the person entitled to the fund. These acts constituted a valid trust in favor of Jennings, and, unexplained, operated to transfer to him the beneficial interest in the money deposited. Bishop v. Seamen’s Bank for Savings, 33 App. Div. 181; Devlin v. Hinman, 34 id. 107; Willis v. Smyth, 91 N. Y. 297; Boone v. Citizens’ Savings Bank, 84 id. 83; Mabie v. Bailey, 95 id. 206; Cunningham v. Davenport, *sufra.*Mrs. Krauth boarded with the Jennings family at the time, and there were reasons for making this provision in their favor, particularly as she had deposited a like sum in the Hew York Savings Bank in trust for Hennessy, who subsequently received the money. The court should not disturb the disposition made by Mrs. Krauth, of her own money, except for some substantial reason. At the time of the transfer to Jennings, Mrs. Krauth was about eighty-two years of age, and the defendant claims that she was then of unsound mind, and incapable of legally making a change of beneficiaries. “ Mere mental weakness, or inferiority of intellect, will not incapacitate a person from making a valid contract; nor is it easy to define the state of mind which will have this effect.” 1 Pars. Cont. (6th ed.) 383. And it is elementary that any person may create a trust who is capable of making a valid disposition of property of any description. A trust once created can be attacked only by a preponderance of evidence proving facts rendering it invalid in law, the burden being on the assailant. Jones v. Jones, 137 N. Y. 610. Mrs. Krauth’s mind was not so weak in 1890 as to disable her from business or prevent her from acting with apparent intelligence, particularly in money matters. The bank officials intelligently understood her, and there seems to be no legal reason why the intention she deliberately expressed to them should be defeated by awarding the fund contrary *267to her will. On ¡November 10, 1894, Mrs. Krauth was judicially declared to be an incompetent person, and the finding declares that such incompetency dated back to 1892, about two years subsequent to the change of beneficiaries. She died September 11, 1897, and Hennessy thereafter qualified as her executor. The evidence offered, by which it was attempted to show the incompetency of Mrs. Krauth in 1890, is simply matter of opinion, founded on an examination made four years afterwards by Dr. Fitch, supplemented by what others had said as to her memory for some years preceding. It proves no condition uncommon to persons of her age, and fails to satisfy the judicial mind that reason had been dethroned prior to 1894. The legal presumption is that. Mrs. Krauth was capable of doing what she did, and did precisely what she intended to do. Jones v. Jones, *supra.*Her age did not disqualify her. The law does not look to age, nor to debility of body, if sufficient intelligence remains. Failure to remember names or incidental and unimportant events may, perhaps, indicate decay of memory, but this failure may exist to a very great degree, and yet the “ solid power of understanding ” remain. Van Alst v. Hunter, 5 Johns. Ch., at p. 161. To affect a deed at common law, an entire loss of the understanding had to be shown, for no line has been drawn to show what degree of intelligence is necessary te uphold it, and such a distinction would be impracticable. Jackson v. King, 4 Cow. 207. To overcome the presumption that the creation of the trust in favor of Jennings was a competent and effective act on the part of Mrs. Krauth, it was necessary to show affirmatively that her mental condition at the time precluded the possibility of a just apprehension of the nature of her act, or of an intelligent assent to it (Story on Cont., § 35), or, in other words, *“*that she did not at the time understand what she was about.” Id., § 37. The evidence falls short of this, and does not justify the finding required to sustain any such contention. Mrs. Krauth had been transferring bank accounts since 1879, and this is the first time her capacity to do so has been challenged. It does-not appear that the Jennings family exercised any undue influence-over Mrs. Krauth, or that her act was other than voluntary on her part, in gratitude for past kindnesses. There is no legal reason why the disposition she made of her worldly affairs should not be allowed to stand. Hpon the entire case there must be judgment for the plaintiff.

Judgment for plaintiff.