§ 220 Id.; Personal Transactions. 114 App. Div. 193; Matter of United States Trust Co., 117 App. Div. 178, affd., 189 N. Y. 500; Lattan v. Vanness, 107 App. Div. 393; Kelly v. National Savings Bank, 124 App. Div. 103. Where the decedent deposited a sum of money in a savings bank, in an account entitled." Julia Cody or daughter Bridget Bolin," and the pass-book came into the hands of the daughter, who thereafter retained it during her mother's life, it appearing that the mother, because of infirmities, was the object of solicitude and care, the court held on the accounting, wherein the daughter claimed the deposit as a gift, that the facts did not authorize the inference of a gift or a transfer of title. Matter of Bolin, 136 N. Y. 177. To the same effect, Wood v. Zornstorff, 59 App. Div. 538, 69 N. Y. S. 241. 90. Id. Evidence of Cestui Que Trust as to Personal Transactions Not Admissible. It was held in Tierney v. Fitzpatrick, 122 App. Div. 623, that the plaintiff (cestui que trust) could not testify as to any personal transaction with his father, but that plaintiff's wife could be called to prove the gift of the bank book. In an action by the widow of the former beneficiary against the estate of the depositor, evidence that she or her husband knew of the deposit is inadmissible. being immaterial unless the fact had been communicated by the depositor, and she being incompetent to testify to personal transactions with the deceased. Matter of United States Trust Co., 117 App. Div. 178, affd., 189 N. Y. 500. In determining the title to a savings bank account deposited in the names of a deceased husband and wife, declarations made by either in the presence and Id.; Pay to Either or Survivor. 8 220 hearing of each other are admissible to avoid the conclusion, based on the account itself, that she become the owner on his death. Moore v. Finger, 115 N. Y. S. 1035. 91. Id. Rights of Creditors of Depositor. The Appellate Division, Second Department, in Beakes Dairy Company v. Berns, 128 App. Div. 137, says: "It is now settled in this State that the mere fact of one depositing his own money in his own name in trust for another in a savings bank does not prove a trust, the act being equivocal, i. e., as consistent with some other intention, and therefore not probative of a trust; but that if the depositor happen to die on the way home, or at any time while the deposit account stands, then it is a trust, and a completed gift to the person named as cestui is made out. '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.' 'A deposit by one person of his own money, in his own name as trustee for another, standing alone, does not establish an irrevocable trust during the lifetime of the depositor. It 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' (Matter of Totten, 179 N. Y. 112). It seems that the accident or fact of death turns that which may not have been and could not be found to be the intention of the deceased into his intention. But the gift is completed only at the instant of death. Up to that time the money is that of the depositor to draw out and do with it as he pleases. That being so it must be subject to his creditors during his lifetime, and for the same reason after his death also. One may no more get his money out of reach of his creditors after his death by depositing it in such a way, not to belong to his cestui until he dies, than he could do so by means of a will giving it to such cestui." 92. Joint Deposits Payable to Either or the Survivor. The mother, the original owner of a bank account, frequently stated that she desired her daughter to have her bank deposits, asked if her deposit could be change so that" if anything should happen to her that her daughter could get the money without any trouble," closed up her account and opened a new one, being told that "the money was fixed so that in case anything should happen to her plaintiff could get it without any trouble, and could draw the money § 220 Id.; Rights of Survivor. at any time." The new book was made out as follows: "The Home Savings Bank of Albany, N. Y., in account with Kate V. Beers or Sarah E. Kelly, her daughter, or the survivor of them," and subsequently remained in the joint and equal custody of mother and daughter. The mother did nothing indicating a change in her intent. Held that these acts and declarations of the mother in connection with others, demonstrated her purpose to create a condition embracing the essential elements of joint ownership and survivorship; that while the language of this deposit imports joint ownership by the decedent, and her daughter with final sole ownership in the survivor, still the intent of the original owner to create a trust for another or to give to another joint interest in or ownership of the deposit, is not established solely by the form of the deposit, but must be evidenced also by circumstances surrounding and characterizing the transaction. Kelly v. Beers, 194 N. Y. 49. 93. Rights of Survivor Not Affected by Will of Depositor Made Subsequent to Joint Deposit. Where a deposit originally stood in the name of Mrs. Beers and was changed by adding the words to the heading of the pass-book and to the title upon the bank books making the account payable to Mrs. Beers "or Sarah E. Kelly, her daughter, or survivor," such change being made upon the written direction of Mrs. Beers to the bank, and thereafter a new codicil to a former will and a new will were made and executed by Mrs. Beers, both of which referred to her savings bank deposits, the first one revoking a former legacy to her daughter, and in lieu thereof giving her “all and whatever money I shall at the time of my decease have on deposit in the Albany Savings Bank" does Id.; Burden of Proof. 66 § 220 not contradict the intent, or affect the act of the mother in making the deposit. The mere fact that the mother assumed by her wills to accomplish the same purpose in giving this deposit to her daughter at her death which had already been accomplished by the form of the savings bank deposit, does not of itself contradict her intent in making the deposit, but in fact supplements it in one respect." Kelly v. Beers, 194 N. Y. 60; Kelly v. Beers, 194 N. Y. 49. 94. Id." Pay to Either or the Survivor of Either." The mere fact that a husband having a deposit of his own money in a bank changes the account so as to stand in the joint names of himself and wife, pay to either or the survivor of either," does not of itself establish a gift inter vivos, for no exclusive control was given to the wife,.but the husband retained the right to use the whole fund for his own purposes. Schneider v. Schneider, 122 App. Div. 774. To constitute a gift inter vivos there must be on the part of the donor an intent to give and a delivery of the thing given to or for the donee, in pursuance of such intent, and on the part of the donee, acceptance. (Beaver v. Beaver, 117 N. Y. 421.) One who claims a gift inter vivos of a portion of a savings bank deposit, the money being originally the exclusive property of the alleged donor, is under the burden of establishing by a preponderance of evidence the essentials of a complete gift in presenti. Schneider v. Schneider, 122 App. Div. 774-778. 96. Id. Delivery Essential to Gift Causa Mortis. Delivery is essential to establish a gift causa mortis. Mere possession of a bank book, while raising a pre sumption of delivery, is insufficient if it appear that possession was obtained from one who herself had never had possession, for presumption cannot be piled upon presumption. While her assertion of the gift would naturally involve her possession of the book, possession thereof would not establish the gift. Matter of Duffy, 127 App. Div. 74. In Rawley v. Brown, 71 N. Y. 89, the court said: "Possession of property alone and without explanation, is evidence of ownership; but is the lowest species of evidence. It is merely presumptive, and liable to be overcome by any evidence showing the character of the possession, and that it is not necessarily as owner." 97. Joint Accounts Husband and Wife. The most frequent deposits of this nature are where a deposit is made in a savings bank in the joint name of husband and wife, payable to either, and the courts have held that, where the money was the husband's, the act of depositing it in the joint name of himself and wife would indicate an intent to vest in the wife title to the money should she survive him. Whitlock v. Bowery Savings Bank, 36 Hun, 460; Platt v. Grupp, 41 Hun, 477; Wortmann v. Robinson, 44 Hun, 357. In the Matter of Augsbury v. Shurtleff, 180 N. Y. 138, it was held that an instrument executed by husband and wife addressed to a savings bank, in which each had a separate account, requesting that their accounts be merged, so as to run to either or to the survivor of them, constitutes an order that their accounts be changed so as to make each the joint owner of the entirety, so that, upon the death of one, the survivor would become the owner of the whole; it is executory, however, until presented to the bank and the changes made, and consequently, where one of the parties died |