the depositor of a fund in his own name as trustee for his son had said to an acquaintance: "I will tell you one thing, Tim, I have fixed Frank (the beneficiary) in case of my death that he will be perfectly independent, if any thing should happen to him with his rheumatism, to keep him away from his plumbing business." This declaration showed that it was the depositor's intention that his son should have the fund only in case of the depositor's death. It was held that, upon the death of the depositor, the money belonged to his estate, and not to his son.

In another instance it appeared that a depositor, owning seven bank accounts, had them transferred to himself in trust for certain persons. The depositor retained possession of the pass books until his death and treated the accounts as his own. On one occasion he exhibited the books to three of the persons he had named as beneficiaries and told them he would take the interest as long as he lived, but that when he died the books would belong to them respectively. This, the court held, was not an indication of an intention to make a present gift, but was rather an expression of what the depositor supposed would happen after his title to the principal had ceased by his death. Apparently he had no intention to pass title to the accounts during his lifetime. He tried to make a transfer, which would become effective upon his death. This, however, he could not do, except by will.51

51. Magee v. Knight, (1907), 194 Mass. 546, 80 N. E. Rep. 620. In Lee v. Kennedy, (1898), 25 Misc. Rep. (N. Y. )141, 54 N. Y. Supp. 155, a deposit was made in the name of "Ann Kennedy, for niece, Ann Lee." Ann Kennedy drew out the money and subsequently Ann Lee died. This action was brought by the ad

In a New Jersey case a depositor ordered the following entry to be made in her account in the Provident Savings Institution, of Jersey City: "Frank B. Smith, hatter, Danbury, Conn., son of Joseph Smith and Cornelia; to be drawn by Rachel (depositor); after death, by Frank." Frank Smith was the depositor's nephew. In her pass book in the Howard Savings Institution, of Newark, N. J., she caused the following entry to be made: "This account is in trust for Frank B. Smith," and signed it with her own name. She kept the pass books of both accounts in her possession and drew the dividends up to the time when she was duly declared to be of unsound mind. Her husband was appointed her guardian, and, as such, claimed the right to draw the money. The nephew sued the guardian, claiming that the depositor had declared a trust of the moneys in his favor. It appeared that the depositor had told the nephew that she had all her money "put in trust" for him, but that both of them understood that he was not to have any of it until her death. It was held that it was clear that the

ministratrix of Ann Lee against Ann Kennedy to recover the trust deposit. Proof offered on behalf of Ann Kennedy showed that, at the time of the deposit, she told the bank officer that she wanted to put the money in trust for the girl; that she was not to get the money "until after my death, and unless she remains with me, she won't get it." The court held that there was no irrevocable trust created. The beneficiary was not to get the money unless she continued to live with Ann Kennedy, and unless she survived the latter. Neither condition was fulfilled. Assuming that there was a trust, it was of a qualified nature, and was defeated upon a failure of the conditions upon which it was limited. See also Parcher v. Saco & Biddeford Savings Institution, (1886), 78 Me. 470, 7 Atl. Rep. 266; Nutt v. Morse, (1886), 142 Mass. 1, 6 N. E. Rep. 763; Bartlett v. Remington, (1878), 59 N. H. 364.

depositor did not intend to part with her complete and absolute control over the funds and that she had not parted with title thereto. Her design in making the entries evidently was to make a deposition of a testamentary character and the nephew, therefore, had no valid claim.52

But in New York, as has already been shown, the practical effect of the Totten case is to permit the creation of a trust to become effective only in case of the depositor's death.53

There have been many instances of trusts, the substantial result of which was to make a disposition to take effect after the death of the person creating the trust, the settlor, as he is usually called. Thus cases are frequent where the owner of property has, voluntarily and without consideration, conveyed it to another to hold in trust for the benefit and enjoyment of the settlor during his life, and on his death to hold it in trust for other beneficiaries, or to pay it over to certain persons.

Such a trust does not operate as a will. The essential difference between it and a will is that, in the case of the trust, the interest of the beneficiaries vests immediately, but the will does not take effect until the death of the testator and until that time no interest vests in the beneficiaries.4

Where the depositor indicates that it is his intention that the person for whom the money is deposited in trust shall have a present interest in the fund, the fact that the

52. Smith v. Speer, (1881), 34 N. J. Eq. 336.

53. See supra, section 4.

54. Perry on Trusts, page 115, note a.

use of the fund by the beneficiary is postponed until the death of the depositor will not defeat the trust. It is sufficient if an interest vests in the beneficiary at the time of the deposit."

If the trust is once perfectly created, with an intelligent comprehension of the nature of the act, it is irrevocable, even though voluntarily made. It is true that the settlor may reserve a right to revoke the trust and that such reservation is perfectly consistent with the creation of a valid trust. But a reservation by the settlor of power to change the beneficiaries or revoke the trust at will is looked upon with considerable suspicion by the courts, and, if convinced that the only object of the settlor was to make a revocable disposition to take effect after his death, the trust will not be sustained.

The

There is one striking instance of the reservation of such a power, wherein the trust was held to be invalid. case is McEvoy v. Boston Five Cents Savings Bank,56 wherein the owner of two savings bank deposits assigned them by a written instrument to a trustee, to be devoted to certain designated purposes after her death. Among other things, the assignment provided: " The said trustee shall pay to me such moneys as I shall demand of him at any time during my life until I have used the amount

55. Robinson v. Appleby, (1902), 69 N. Y. App. Div. 509, 75 N. Y. Supp. 1, Aff'd., 173 N. Y. 626, 66 N. E. Rep. 1115; Grafing v. Heilman (1896), 1 N. Y. App. Div. 260, 37 N. Y. Supp. 253; Matter of Biggars, (1902), 39 Misc. Rep. (N. Y.) 426, 80 N. Y. Supp. 214; Matter of King, (1906), 51 Misc. Rep. (N. Y.) 375, 101 N. Y. Supp. 279; In re Podhajsky's Estate, (1908), 137 Iowa 742, 115 N. W. Rep. 590; Scrivens v. North Easton Savings Bank, (1896), 166 Mass. 255, 44 N. E. Rep. 251.

56. 201 Mass. 50, 87 N. E. Rep. 465 (1909).

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conveyed to him by this deed." It was also provided: "I hereby reserve to myself the right to revoke this deed at any time during my life." Thus, the depositor retained the right to use the funds during her life and to revoke the trust at will. It was held that the assignment was intended to operate as a testamentary disposition and was invalid because not executed in conformity with the statute of wills.

§ 12. Trust in favor of fictitious person. -A depositor, who deposits his money in his name, in trust for a fictitious person, does not thereby lose title to the money. In the case of Garvey v. Clifford,57 the facts showed that in February, 1890, Patrick Sheedy deposited the sum of $3,000.00 in the Bowery Savings Bank in New York City under this title: "Patrick Sheedy, in trust for Johanna Sheedy." It appeared that the depositor had a sister Johanna, but that thirty years before the time of the deposit she had married and taken the name of Dwyer. The sister died in 1898 and the account remained in the same condition until the death of the depositor in 1903. It was held that there was no trust, one reason being that the deposit was made in favor of a fictitious beneficiary.

§ 13. Trust deposit in favor of creditor. It has been held that where a person deposits money in his name

57. 114 N. Y. App. Div. 193, 99 N. Y. Supp. 555, (1905). See Nicklas v. Parker, (1905), 69 N. J. Eq. 743, 61 Atl. Rep. 267, where deposits were made in trust for two persons who had been dead for several years at the time of the deposits, and Washington v. Bank for Savings, (1901), 65 N. Y. App. Div. 338, aff'd., 171 N. Y. 166, where the depositor opened two accounts in trust for her sons and it appeared that never had any children.