Year: 1878

The Court of Appeals has just rendered an impor-
tant decision in the of Abby s. Martin against
Edward Finck and another. The action was tried
originally before Judge Larremore. in Equity Term
of the Supreme Court, and the facts were briefly as
follows:-Mrs Boone. at the time elderly lady, de-
posted in the Citizens Savings Bank $780, declaring
that she wanted the account to be in trust for Lille
Willard. The account was so entered and passbook
delivered to Mrs. 1oone. which contained these en-
tries, "The Citizens Savings Bank, in account with
Susan Boone in trust for Lille Willard. 1866. March
o. $500" A deposit Of the same amount and in the
same manner made In trust for Kate Willard.
now Mrs. Brown. This money belonged to Mrs.
Boone at tho time of the deposit. The plaintiff and
Mrs. Brown are sisters, and at the time the de-
posit was made eighteen and twenty years Of age
spectively, and distant relatives Of Mrs. Boone.
The latter retained possession of the passbooks until
her death in 1875 and the plaintiff and her sister


ignorant Of the deposits until after that event. The
money remained in the bank with its accumulated
interest until the death Of Mrs. Boone. Mrs Brown
assigned to the plaintiff her interest in the deposit
purporting to have been made for her benefit and
this action brought against the administrator or
Mrs. Boone and the bank for the delivery OF the pass
books and the recovery of the money. The Court OF
Appeals, Chief Justice Church writing tho opinion.
afirms the Judgment Of Judge Larremore at Equity
Term. In his opinion Judge Church says that the
question involved has been much ltgated one, and
-
without knowledge, has the power to make volun-
tary gift part the whole of his property while
it is well settled that mere intention whether
pressed not is not sufficient. The act constituting
the transfer must be consummated and
not remain incomplete. The contention Of the
defendant is that the transaction did not
transfer the property, and that there was
sufficient declaration Of trust, and that by retaining
the passbooks Mrs. Boone parted with the
troll of the property. If what she did sufficient
to constitute herself trustee it must follow that
whatever control she retained would be exercised
trustee ana the right to exercise it would not be
necessarily inconsistent with the completeness of the
trust Judge Church cites numerous decisions OF the
courts III analogous cases. which he says although
not controlling on the Court Of Appeals, entitled


to respect and show the tendency of the Judicial mind


to give these transactions the effect which their
face they import If there is valid declaration OF
trust that is sufficient to transfer the title, but the
difficulty is in determining what constitutes such
that under all the circumstances Of the valid
and complete trust established. and that there
are very many besides this where the in
strument creating the trust has been retained by the
author of until his DEATH especially when he made
himself the trustee. To be sure, trustee should do
all in his power carry out the instructions of the
trust but this is not absolutely indispensable, and
notice to the cestui que trust not necessary,
aud the retention of the passbooks not incon
sistent with the completeness of the act the is
peculiarly one to be determined by this test-Did
question Judge Church answers in the Affirmative.
aud concludes, from the evidence adduced, that it is
fairly inferabe that the intestate designed that the
plaintiff and her sister should have the benefit of
these deposits He therefore afirns the judgment OF
Judge Larremore, in which all concur.