his name in trust for another, the fact that he draws out and uses the interest on the deposit from time to time does not establish that he did not intend to create a trust in favor of the beneficiary named.**

In the case of Grafing v. Heilmann," the depositor of a trust account drew the interest on the deposit regularly until the time of his death. It was held that the fact that the depositor reserved for himself the interest on the deposit during his lifetime was immaterial and that there was, nevertheless, a valid trust.

§ 10. Withdrawal of principal. Where an irrevocable trust has been created the subsequent withdrawal of part or all of the deposit by the depositor and its appropriation to his own use does not deprive the beneficiary of his right to the part withdrawn. If the depositor takes and uses part or all of the deposit the beneficiary can compel restitution, and in event of the depositor's death, the beneficiary is entitled to claim against his estate for the moneys withdrawn.

In Proseus v. Porter, 45 the depositor, a Mrs. Proseus,

43. Grafing v. Heilmann, (1896), 1 N. Y. App. Div. 260, 37 N. Y. Supp. 253; Willis v. Smyth, (1883), 91 N. Y. 297; Matter of Collyer, (N. Y. 1885), 4 Dem. Surr. 24; Ray v. Simmons, (1875), 11 R. I. 266; O'Neil v. Greenwood, (1895), 106 Mich. 572, 64 N. W. Rep. 511.

44. 1 N. Y. App. Div. 260, 37 N. Y. Supp. 253 (1896).

45. 20 N. Y. App. Div. 44; 46 N. Y. Supp. 657, (1897). See also the cases of Mabie v. Bailey, (1884), 95 N. Y. 206, and Farleigh v. Cadman, (1899), 159 N. Y. 169. In the former case a deposit in the form of a trust was strengthened by evidence of statements on the part of the depositor showing an intent to create a trust. It was held that after the depositor's death the beneficiary was entitled to recover from the depositor's estate sums which the de

just before sailing for Europe, opened an account in her name "in trust for Charlotte Porter," her sister. The pass book was delivered to the beneficiary. After her return from Europe Mrs. Proseus made various deposits and withdrawals from the account. In an action which was started after the death of Mrs. Proseus it was claimed that the deposits in and withdrawals from the account were inconsistent with an intention to create a trust. "Undoubtedly," said the court, "these acts tend to disprove a trust, but they are by no means conclusive."

In some of the earlier cases, wherein it appeared simply that a deposit had been made by one person in trust for another, without evidence of declarations or other acts of the depositor, tending to establish intention, it has been held that the beneficiary of the trust was entitled, after the depositor's death, leaving the account open and unexplained, to recover from the depositor's estate such amounts as the depositor had withdrawn after the account was started. These cases adopted the theory that a deposit by one person in trust for another, and the

positor had withdrawn from the account. In the latter case evidence was produced in addition to the form of the deposit clearly showing an intention to create a trust. It was held that the depositor had no power, when the beneficiary subsequently incurred his disfavor, to divert the trust fund to another beneficiary, by closing the trust account and opening another, and that the first beneficiary was entitled to recover from the second, who had received the trust fund from the bank in which it was deposited. Instances in which the depositor's estate has been charged with the amount which the depositor used out of a trust fund which he had established are Minor v. Rogers, (1873), 40 Conn. 512, and Macy v. Williams, (1890), 55 Hun (N. Y.) 489, 8 N. Y. Supp. 658; aff'd., 125 N. Y. 767, 27 N. E. Rep. 409.

subsequent death of the depositor, leaving the account open and unexplained, established an irrevocable trust, as of the time of the making of the deposit. Hence its subsequent withdrawal did not deprive the beneficiary of his right to the fund, and left the depositor's estate liable to him for the amount diverted.

In a New York case it appeared that the sum of $3,000 was deposited in the Bowery Savings Bank under the title of "Stout Robertson in trust for Cornelius S., brother." The money belonged to Stout, who retained the pass book until the time of his death a few months later. Cornelius had no knowledge of the account until after his brother's death. During his lifetime Stout drew out and used $2,000.00 of the deposit. In an action by Cornelius against the administrator, the latter did not dispute the validity of Cornelius' claim as to the $1,000 remaining on deposit, but he claimed that the trust was revoked as to the amount withdrawn. It was held that the estate was liable to Cornelius for the amount withdrawn. The deposit created an irrevocable trust which in the absence of the reservation of the power of revocation could not be revoked.47

This case, however, and those which hold with it have been overruled. Under the leadership of the Totten case,48 it is now the rule, in New York at least, that

47. Robertson v. McCarty, (1900), 54 N. Y. App. Div. 103, 66 N. Y. Supp. 327. For similar decisions see Jenkins v. Baker, (1902), 77 N. Y. App. Div. 509, 78 N. Y. Supp. 1074, and Marsh v. Keogh, (1903), 82 N. Y. App. Div. 503, 78 N. Y. Supp. 1074.

48. Matter of Totten, (1904), 179 N. Y. 112, 71 N. E. Rep. 748. See also Rush v. South Brooklyn Savings Institution, (1909), 65 Misc. Rep. (N. Y.) 66, 119 N. Y. Supp. 726; Tierney v. Fitz

where the depositor of a tentative trust dies before the beneficiary without revocation, or some decisive act or declaration of disaffirmance, the presumption arises that an absolute trust was created as to the balance on hand at the death of the depositor. By tentative trust is signified a deposit by one person of his own money, in his own name as trustee for another, which at the time of the depositor's death is left open and unexplained. Of course, as stated above, where there is evidence of acts showing the creation of an absolute trust, such as delivery of the pass book to the beneficiary, the depositor, or his estate, is liable to the beneficiary for amounts withdrawn by the depositor.

In other jurisdictions, where the doctrine of tentative trusts, exploited in the Totten case, has not been adopted, it would be held that, where the depositor of money in a trust account died without notifying the beneficiary of the trust, and without taking any step to complete the trust, there would be no trust at all. Consequently the depositor's estate would not be responsible to the beneficiary if the beneficiary had drawn and used part or all of the fund.

It has been held that a notice to a bank by the depositor of a fund in trust of his intention to withdraw the money, where the bank was insisting upon its statutory right to sixty days' notice of withdrawal, is as effectual

patrick, (1907), 122 N. Y. App. Div. 623, 107 N. Y. Supp. 527; and Matter of Biggars, (1902), 39 Misc. Rep. (N. Y.) 426, 80 N.Y. Supp. 214, wherein it was said that the depositor was under no obligation to the beneficiary to maintain the fund at the highest point it might reach." In this case it appeared that the beneficiary had the benefit of some of the money withdrawn.

to revoke a tentative trust as the actual withdrawal of the money.49

§ 11. Trust to become effective upon depositor's death.--Where it appears that the depositor placed his money in a trust account, with the intention that the beneficiary should not take any interest except in case of the depositor's death, the money belongs at his death to his estate, and not to the beneficiary. In order to create a valid trust there must be an intent on the part of the depositor to give the beneficiary an interest in præsenti. The reason for this is that a trust, which is not to have any effect except in case of the death of the person creating the trust, is violative of the statute of wills. There is but one valid method of creating an estate which springs into existence only in the event of the death of the transferror and that is by means of a will. Wills must be executed in accordance with certain statutory requirements. They must be written; they must be signed; they must be subscribed by witnesses, varying in number according to the jurisdiction, etc. It is apparent that a deposit in a bank in trust for some person does not fulfil these requirements. If, then, a bank deposit trust is in such form that the person designated as beneficiary gains no rights in the fund except in case he survives the depositor, no valid trust is created and the ownership of the money remains in the depositor.

In the case of Tierney v. Fitzpatrick,50 it was shown that

49. Rush v. South Brooklyn Savings Institution, (1909), 65 Misc. Rep. (N. Y.) 66, 119 N. Y. Supp. 726.

50. 122 N. Y. App. Div. 623, 107 N. Y. Supp. 527, (1907).