The rule that a mere deposit by one person in his name in trust for another does not, standing alone, create an irrevocable trust has long been settled. In the recent case of Matter of Totten, decided by the New York Court of Appeals, it was said: "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, such as delivery of the pass book or notice to the beneficiary."

In some of the earlier cases it was held that such a deposit created merely a presumption that a trust was intended, but the Totten case was the first in which a deposit of this kind was referred to as a tentative trust.

The reason why a deposit by one person in trust for another creates nothing more than a presumption of trust is that the deposit is open to many other explanations than an intent on the part of the depositor to establish a trust. A deposit in this form may or may not resolve itself into a trust. The deposit is but evidence (not conclusive) of an intent to establish a trust, to be considered in connection with the other facts and circumstances involved. Divers motiv s, other than a desire to make a gift in trust, may dictate the making of the deposit.

In Matter of Barefield, where it appeared that a

2. 179 N. Y. 112; 71 N. E. Rep. 748, (1904).

3. 36 Misc. Rep. (N. Y. ) 745, 74 N. Y. Supp. 472; Aff'd. 177 N. Y. 387, 69 N. E. Rep. 732.

daughter had deposited money in trust for her mother in an account entitled "Rebecca A. R. Barefield in trust for Mary E. Rosell," it was said: "With the exception of the manner of opening the account the case is barren of any proof showing any intent to vest title in the decedent. This method of opening an account is one that is frequently followed by persons for various reasons of their own, and the courts are perfectly familiar with the fact that it is done repeatedly without any intention of the depositor divesting himself of ownership in the money."

In another New York case, which, while it did not involve a trust deposit, has been referred to by the courts in passing upon such deposits, it was said: "We cannot close our eyes to the well known practice of persons depositing in savings banks, money to the credit of real or fictitious persons, with no intention of divesting themselves of ownership. It is attributable to various reasons; reasons connected with taxation; rules of the bank limiting the amount which any one individual may keep on deposit; the desire to obtain high rates of interest where there is a discrimination based on the amount of deposits, and the desire on the part of many persons to veil or conceal from others knowledge of their pecuniary condition."

In the case of Mabie v. Bailey, it was said: "I should incline to the opinion that the character of such a transaction, as creating a trust, is not conclusively established by the mere fact of the deposit, so as to preclude evidence

4. Beaver v. Beaver, (1889), 117 N. Y. 430, 22 N. E. Rep. 940. 5. 95 N. Y. 206, (1884).

of contemporaneous facts and circumstances constituting res gestæ, to show that the real motive of the depositor was not to create a trust, but to accomplish some independent and different purpose inconsistent with an intention to divest himself of the beneficial ownership in the fund."

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In one of the earlier New York cases, it was held that a deposit by one person in trust for another created a trust which could not be refuted by subsequent acts or declarations. The depositor placed a sum of money in a savings bank, in her own name, in trust for her brother. It was held that the form of the deposit raised a presumption of trust. This presumption might be refuted by facts or circumstances contemporaneous with the deposit. But, in the absence of such facts, the presumption became conclusive. It could not be refuted by acts or words subsequent to the deposit. What the depositor said and did after the deposit was made could not affect the original transaction.

7

In People's Savings Bank v. Webb, it was said: "There is a unanimous agreement (in the decisions) that the creation of a trust as to a deposit is a question of intention, and so a question of fact. None of them hold that a trust is conclusively constituted by the deposit itself. Some go so far as to hold that a deposit in the name of another, without any mention of a trust, is still open to inquiry. The strictest rule in favor of the trust seems to be this:

That the intention to create one may

6. Hyde v. Kitchen, (1893), 69 Hun (N. Y.) 280, 23 N. Y. Supp. 573.

7. 21 R. I. 218. 42 Atl. Rep. 874 (1899).

be presumed where the depositor dies, leaving the matter unexplained and the apparent intention undisputed. It is certainly clear that the depositor is not conclusively bound by the mere form of a deposit as trustee for another. The proposition rests upon the good reason that one, who is dealing with his own property, either ignorantly or for convenience, or pursuant to a purpose, not fully determined or executed, should not be held to have dispossessed himself against his will."

§ 3. Intent of depositor governs. The determination of the question of whether a valid trust of a bank account has been created is referable to the intent of the depositor. If, in making the deposit, he intended to create a trust, and such intent can be established, and, in addition to such intention has taken the requisite steps to create a trust, the courts will dispose of the fund in accordance with such intention. On the other hand, although the money is deposited in the form of a trust account, if it is shown that the depositor never intended to create a trust in favor of the party named as beneficiary, it will be held that no trust was created.8

8. 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; Green v. Sutherland, (1903) 40 Misc. Rep. (N. Y.) 559, 82 N. Y. Supp. 878; Matter of Barefield, (1904), 177 N. Y. 387; 69 N. E. Rep. 732; Matter of Smith, (1903), 40 Misc. Rep. (N. Y.) 331, 81 N. Y. Supp. 1035; Sayre v. Weil, (1901), 94 Ala. 466, 10 So. Rep. 546; Cleveland v. Hampden Savings Bank, (1902), 182 Mass. 110, 65 N. E. Rep. 27; Rambo v. Pile, (1908), 220 Pa. 235; 69 Atl. Rep. 807; Haux v. Dry Dock Savings Institution (1897), 2 N. Y. App. Div. 165, Aff'd., 154 N. Y. 736; Decker v. Union Dime Savings Institution, (1897), 15 N. Y. App. Div. 553; Devlin v. Hinman, (1898), 34 N. Y. App. Div. 107;

Green v. Sutherland,' decided in 1903, was a case wherein it clearly appeared that there was no intention to create a trust. The depositor, an aged woman, confined to her home by injuries, desired to draw money which was on deposit in a savings bank, in her name. At her request a representative of the bank called and it was arranged between him and a daughter of the depositor that the account should be changed to read "Maria Wildbret, in trust for Sophie Sutherland, daughter." The arrangement was made for convenience in drawing the money. In an action brought after the depositor's death by her executor, to have the deposit declared the property of the depositor's estate, it was determined that the money belonged to the estate, and not to the daughter, the ground being that it appeared that there was no intention on the part of the depositor to establish a beneficial interest in favor of the daughter.

In another instance, which arose in the state of Pennsylvania,1o it appeared that a real estate dealer opened an account in his own name, as Trustee for E. S. Githens." He retained the pass book and continued

66

All the checks, which

to deposit his funds in the account. he drew in the course of his business, were drawn against this account. The depositor subsequently married the beneficiary of the deposit. The depositor survived the

Brabrook v. Boston Five Cent Savings Bank, 104 Mass. 228; Cleveland v. Hampden Savings Bank, (1902), 182 Mass. 110, 65 N. E. Rep. 27; Estate of Thomas Smith, (1891), 144 Pa. St. 428, 22 Atl. Rep. 916; People's Savings Bank v. Webb, (1899), 21 R. I. 218, 42 Atl. Rep. 874.

9. 40 Misc. Rep. (N. Y.) 559, 82 N. Y. Supp. 878 (1903). 10. Rambo v. Pile, (1908), 220 Pa. 235; 69 Atl. Rep. 807.