be said to be a trust at all. It impugns the authority of the statute of wills, by permitting a disposition of property to take effect only after death, without following the testamentary requirements. On the other hand, as a piece of constructive legislation, the decision could hardly be too highly praised. It effectuates a custom which has grown up among the humbler classes of people, who, in placing their money on deposit in trust for other persons, often intend to retain the right to use it, principal as well as interest, during life, but that whatever remains at the time of death shall go to the cestui que trust. Under the law as it stood, the estate of depositors who as trustees had drawn money from accounts would be liable to refund the same to the cestui que trust. The validation of the business custom in question seems so unobjectionable, indeed so desirable, that the writer has on various occasions advocated the enactment of a statute on just the lines laid down in the Matter of Totten. He did, not believe that a court would venture upon such a radical innovation, and it is difficult to justify it as an exercise of judicial power."

§ 5. Declarations of depositor showing an intent to create a trust. The depositor of a trust fund may make the trust irrevocable or absolute by declarations evidencing such an intent. In the case of Hutton v. Smith,20 it appeared that an account was opened by Rose Ann Coyle, as "trustee, John Hutton." The money was later drawn out and used in the purchase of real estate.

20. 74 N. Y. App. Div. 284, 77. N. Y. Supp. 523; Aff'd., 175 N. Y. 375, 67 N. E. Rep. 633, (1903).

There was evidence that the depositor had made declarations to the effect that the money had been put in trust for John. She had also declared that the property, purchased with the trust fund, belonged to John. John himself testified that he accompanied Rose Ann Coyle at the time the money was withdrawn and the property purchased. It was held that there was a trust in favor of John and that he was entitled to impress a trust upon the real estate to the extent of the deposit.

In another instance it appeared that one Bridget Steggels had deposited her own money" in trust for John T. Scallan." Witnesses testified that the depositor had stated that she held the deposit for the benefit of Scallan. She retained the deposit book until the day before her death, when she delivered it to the executor of her will. It was held that the money belonged to Scallan, and not to the depositor's estate.21

In a Pennsylvania case, 22 it appeared that the depositor opened an account in her own name, "in trust for Mary Agnes Fitzgerald." Several deposits were made in the account from time to time and, during the time the deposits were being made, the depositor stated that she had taken out a book" in her niece's name and that the

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21. Scallan v. Brooks, (1900), 54 N. Y. App. Div. 248, 66 N. Y. Supp. 591. For other cases involving declarations by the depositor see Meislahm v. Meislahm, (1900), 56 N. Y. App. Div. 566, 67 N. Y. Supp. 480, O'Brien v. Williamsburg Savings Bank, (1905), 101 N. Y. App. Div. 108, 91 N. Y. Supp. 908; Anderson v. Thomson, (N. Y. 1885), 38 Hun 394; Gerrish v. New Bedford Institute for Savings (1879), 128 Mass. 159; Alger v. North End Savings Bank (1888), 146 Mass. 418; 15 N. E. Rep. 916.

22. Merigan v. McGonigle, (1903), 205 Pa. 321, 54 Atl. Rep. 994.

money belonged to the niece and was deposited for her. It was held that a valid trust was created.

§ 6. Retention of pass book by depositor. The presumptive trust, which is established by a deposit by one person in trust for another, is not rebutted by the fact that the depositor retained the pass book in his possession.23 Such a retention of the pass book is not inconsistent with the idea of trust. The depositor is deemed to have retained the book as trustee, and, being a trustee, he is a proper custodian.2

In this respect a trust differs from a gift. Where the claimant attempts to make out a gift of a bank account it is necessary to show a delivery of the pass book or some equivalent act.25

Where a trust account has been opened, the subsequent delivery of the pass book by the depositor to the beneficiary will convert the tentative trust, thus created, into

23. Connecticut River Savings Bank v. Albee, (1892), 64 Vt. 571, 25 Atl. Rep. 487; Martin v. Funk, (1878), 75 N. Y. 134; Willis v. Smyth, (1883), 91 N. Y. 297; Grafing v. Heilman, (1896), 1 N. Y. App. Div. 260, 37 N. Y. Supp. 253; Robertson v. McCarty, (1900), 54 N. Y. App. Div. 103, 66 N. Y. Supp. 327; Marsh v. Keogh, (1903) 82 N. Y. App. Div. 503, 81 N. Y. Supp. 825; Williams v. Brooklyn Savings Bank, (1900), 51 N. Y. App. Div. 332, 64 N. Y. Supp. 1021; Haynes v. McKee (1896), 18 Misc. Rep. (N. Y.) 361; 41 N. Y. Supp. 553. Matter of Biggars, (1902), 39 Misc. Rep. (N. Y.) 426, 80 N. Y. Supp. 214; Weaver v. Emigrant Industrial Savings Bank, (N. Y. 1885), 17 Abb. N. C. 82; Gaffney's Estate, (1891), 146 Pa. 49, 23 Atl. Rep. 163; Bath Savings Institution v. Hathorn, (1895), 88 Me. 122, 33 Atl. Rep. 836; Ray v. Simmons, (1875), 11 R. I. 266.

24. Williams v. Brooklyn Savings Bank, (1900), 51 N. Y. App. Div. 332, 64 N. Y. Supp. 1021; Connecticut River Savings Bank v. Albee, (1892), 64 Vt. 571, 25 Atl. Rep. 487.

25. See infra, section 26.

an irrevocable trust. In the case of Matter of Totten,26 where it was said that a tentative trust remains revocable at will "until the depositor dies or completes the gift in his life time by some unequivocal act or declaration, such as delivery of the pass book or notice to the beneficiary."

This rule has been held in other decisions.27

In the case of Matter of Davis, 28 three trust accounts were opened, each entitled " Marian Davis, in trust for William H. Davis." The money deposited belonged at the time of the deposit to Marian Davis absolutely. After the death of William H. Davis the pass books were found in his safety deposit vault. There was no other evidence tending to show the intent of the depositor. It was held that the deposit, standing alone, amounted to nothing more than a tentative trust. But the finding of the pass books in the vault of the beneficiary necessarily implied notice to the beneficiary. This was enough to render the trust irrevocable.

However, not every delivery of a pass book, representing a trust deposit, will convert the trust from a tentative one into one which is irrevocable. The delivery must be made in pursuance of the intent to make a gift. In one instance a father opened an account in favor of his son, entitled "Launcelot J. Tierney, in trust for Frank Tierney." The pass book was delivered to the son and was placed in a safe in his house. The father frequently

26. 179 N. Y. 112; 71 N. E. Rep. 748, (1904).

27. Rush v. South Brooklyn Savings Institution, (1909), 65 Misc. Rep. (N. Y.) 66, 119 N. Y. Supp. 726; Matter of Davis, (1907), 119 N. Y. App. Div. 35, 103 N. Y. Supp. 946.

28. 119 N. Y. App. Div. 35, 103 N. Y. Supp. 946, (1907).

took the book for the purpose of making a deposit, or having the interest written up, and would return it later to the safe in his son's house. It did not appear that the father asked permission to take the book; he simply took it and returned it at his pleasure. It was held that this was not a sufficient delivery of the book to the son to render the trust irrevocable. In addition to the facts stated, however, it appeared that the father had made declarations showing that it was not his intention that the son should have an immediate interest in the fund.29

§ 7. Effect of failure to notify beneficiary of trust. While notice to the beneficiary that a trust deposit has been made in his favor is one means of converting a tentative trust into an irrevocable one, it is held in a number of cases that the fact that the depositor never in his lifetime divulged the deposit, or notified the beneficiary that it had been made, does not conclusively establish that no valid trust has been created. There may be a valid trust notwithstanding the beneficiary did not learn of the deposit until after the death of the depositor.3 30

29. Tierney v. Fitzpatrick, (1907), 122 N. Y. App. Div. 623, 107 N. Y. Supp. 527.

30. Martin v. Funk, (1878), 75 N. Y. 134; Jenkins v. Baker, (1902), 77 N. Y. App. Div. 509, 78 N. Y. Supp. 1074; Robertson v. McCarty, (1900), 54 N. Y. App. Div. 103, 66 N. Y. Supp. 327; Williams v. Brooklyn Savings Bank, (1900), 51 N. Y. App. Div. 332, 64 N. Y. Supp. 1021; Matter of Biggars, (1902), 39 Misc. Rep. (N. Y.) 426, 80 N. Y. Supp. 214; Weaver v. Emigrant Industrial Savings Bank, (N. Y. 1885), 17 Abb. N. C. 82; Scott v. Harbeck, (1888), 49 Hun (N. Y.) 292, 1 N. Y. Supp. 788; Bath Savings Institution v. Harthorn, (1895), 88 Me. 122, 33 Atl. Rep. 836; Gerrish v. New Bedford Institution for Savings (1879), 128 Mass. 159. In Williams v. Brooklyn Savings Bank (supra), it was said: “ Knowledge of the beneficiary was not essential.”