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beneficiary and, after his death, a controversy arose as to whether the fund belonged to his estate, or to the estate of the beneficiary. It was held that the circumstances under which the account was opened and maintained tended to show that the depositor intended to retain control and ownership of the deposit and that the money belonged to his estate.

In some instances the question of ownership has arisen before the death of the depositor, and the ownership is established by the positive testimony of the depositor.11

But even the positive testimony of the depositor that he intended to create a trust will not conclusively show that a trust has been created, where it clearly appears that the deposit was made in the form of a trust for some other purpose. In a New York case it appeared that one Louis H. Lattan opened four trust accounts, in which he named his two sisters as trustees, and one of his four children in each case as beneficiary. After the death of the trustees the children brought suit against their administrators to recover the deposits. Mr. Lattan testified that, in making the deposits, he intended to create irrevocable trusts. "But, it must not be forgotten," said the Court, "that he was testifying in behalf of his children's effort to obtain from his sisters' estates the

11. 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; Cunningham v. Davenport, (1895), 147 N. Y. 43, 41 N. E. Rep. 412; People's Savings Bank v. Webb, (1899) 21 R. I. 218, 42 Atl. Rep. 874; Sayre v. Weil, (1891), 94 Ala. 466; 10 So. Rep. 546, in which case a depositor of funds in trust for his grandchildren testified as follows: " I put it there as a gift to them every week so that when they grew up they would have something to fall back on." It was held that a valid trust had been created.

money which, for a period of sixteen years, had been treated as his own, and paid to him for the support of himself, his wife, and, presumably, these plaintiffs." It appeared that Mr. Lattan was not of a saving nature and that the trust accounts were opened for the purpose of putting the money beyond the peril of his spendthrift habits. It was held that no irrevocable trusts had been created.12

The mere intention to create a trust, without acts, is not sufficient. It has been held that frequent declarations on the part of a depositor, to the effect that money deposited in his name belongs to another, will not create a trust. And the party, in whose favor such declarations were made, was held not entitled to recover the deposit from the bank.13

§ 4. Effect of death of depositor upon tentative trust. In case the depositor of a trust fund dies before the beneficiary, leaving the account open and unexplained, without revocation, or some decisive act or declaration of disaffirmance, it is held in New York that the presumption arises that an absolute trust was created as to the balance on hand at the death of the depositor. This is the rule as it is stated in Matter of Totten.14

Thus, in New York, if A deposits his money in an account entitled "A in trust for B," the deposit in that form raises a presumption that A intended to create a trust in

12. Lattan v. Van Ness, (1905), 107 N. Y. App. Div. 393, 95 N. Y. Supp. 97.

13. Smithwick v. Bank of Corning, (Ark., 1910), 130 S. W. Rep. 166.

14. 179 N. Y. 112; 71 N. E. Rep. 748, (1904), at page 126.

favor of B. He may at any time revoke this tentative trust and withdraw the money. If, however, by some decisive act, he indicates an unqualified intention of creating a trust, the trust becomes irrevocable and he cannot afterwards revoke it. If A dies before B the question of whether or not a trust was established remains one of intention on the part of the depositor. B may show that A gave him the pass book, saying that the money was his (B's), or did some other act which would as clearly show an intent to vest the fund in B, and thus establish his ownership of the money. On the other hand A's administrators, or executor, may produce evidence showing that A had no intention of making a trust in favor of B. The rule above stated is to the effect that, in such a case, where no evidence on behalf of either party is forthcoming, it will be conclusively presumed that A did intend to establish a trust as to the amount on deposit at his death, with B as the beneficiary, and the deposit will be awarded to B. It has been held in a number of cases that under these circumstances the deposit belongs to B.15

15. Williams v. Brooklyn Savings Bank, (1900), 51 N. Y. App. Div. 332, 64 N. Y. Supp. 1021; Proseus v. Porter, (1897), 20 N. Y. App. Div. 44, 46 N. Y. Supp. 657; Matter of Finn, (1904), 44 Misc. Rep. (N. Y.) 622, 90 N. Y. Supp. 159; Miller v. Seamen's Bank for Savings, (1901), 33 Misc. Rep. (N. Y.) 708, 68 N. Y. Supp. 983; Weaver v. Emigrant Industrial Savings Bank, (1885), 17 Abb. N. C. (N. Y.) 82; Gaffney's Estate, (1891) 146 Pa. 49, 23 Atl. Rep. 163; People's Savings Bank v. Webb, (1899), 21 R. I. 218, 42 Atl. Rep. 874; In Cunningham v. Davenport, (1895), 147 N. Y. 43, 41 N. E. Rep. 412, it was said: If the intent can be strengthened by acts and declarations of the depositor in his lifetime, amounting to a publication of his intent, a more satisfactory case is made out, but it is not absolutely essential, in the absence of explanation, where he dies leaving the trust account existing."

This is a most important decision, for it permits the accomplishment of the object for which a large number of trust accounts are opened. Under its ruling a depositor may place his money in his name, in trust for the person he intends to receive the money after his death. He may draw upon the fund at will during his life and at his death, if there are no other circumstances indicating his intent than the fact of the deposit, it will be held that there was a trust as to the amount on deposit at the time of the depositor's death. In other words it practically allows the depositor to create a trust which will become effective only in the event of his death, which is contrary to the general rule applicable to trusts.16

This rule is not followed by the Massachusetts cases. In that state it is held that where the depositor of a trust account dies, having the pass book in his possession, without ever having notified the beneficiary of the deposit, and leaving the account open and unexplained, the money belongs to his estate and not to the beneficiary.17

The New York rule in this regard has been unqualifiedly repudiated in New Jersey. In a recent decision in that state it appeared that one Ellen Cunningham opened an account “in trust for Honora Finerty," the latter being a friend of the depositor. The person named as beneficiary did not learn of the deposit until after the death of the depositor. There was no evidence of any intent on the part of the depositor to create a trust, except the passbook, which always remained in the depositor's possession. In 16. See infra, section 11.

17. Clark v. Clark, (1871), 108 Mass. 522; Keniston v. Mahew, (1897), 169 Mass. 166, 47 N. E. Rep. 612. See also Powers v. Provident Institution for Savings, (1878), 124 Mass. 377.

New York it would be held, upon these facts, that a valid trust was created, as to the amount on deposit at the time of the depositor's death, in favor of the beneficiary. But the New Jersey Court held that these facts were not sufficient to establish a trust.18

The doctrine laid down in New York has been further excepted to. Wilbur Larremore, in an article on "Judicial Legislation in New York," published in the Yale Law Journal, 19 makes the following observations:

"This decision has been widely commented upon by legal journals, and so far as the writer is aware has been unanimously disapproved. It is inconsistent with earlier authorities in the state of New York. It introduces a serious anomaly into the law of trusts. Indeed, a trust that is revocable at the will of the creator can hardly

18. Nicklas v. Parker, (N. J., 1905), 61 Atl. Rep. 267. In the opinion it was said: The right of the person named as cestui que trust (Honora Finerty) to have the fund on deposit must rest upon one of two theories; i.e., that it was a gift inter vivos by the depositor to her, or that it was a valid trust now enforcible by her. In either event the intention must be clearly proven, and such intention must be shown to have been carried into effect by the donor or settlor. The nature and amount of proof required, and the essentials to be proven, are similar with respect to each of the two necessary contentions. The form of the transfer and the time of enjoyment by the beneficiary may be different with respect to a trust, but there must be some definiteness and clearness of proof of the completed execution of intention in the one case as in the other. It is clear that the depositor in this case did not intend to make a gift inter vivos to Honora Finerty of the money deposited. If she had intended to do this she would either have deposited the money in the name of Honora Finerty, so that the latter could have drawn it out at will, or, if she preferred to put it in the form of a trust, she would have vested Honora Finerty with power to draw immediately, or under conditions which she might specify, from the trust funds."

19. 14 Yale Law Journal, No. 6, p. 315.

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