In re the Judicial Settlement of the Account of Davis , 1907 N.Y. App. Div. LEXIS 3849 ( 1907 )

Hooker, J.:

So far as appealed from, the decree of the surrogate should be reversed. . In Matter of Totten (179 N. Y. 112, 125) the court has laid down the following rule by which controversies of this character must be decided: “ 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. Ms lifetime by some unequivocal act or declaration, such as delivery of the pass booh or notice to the beneficiary.” William H. Davis, the beneficiary, died before tlie depositor,; Marian Davis, and before a revocation of the trust. ■Standing alone, the mere deposit of her money in her name, as trustee for him, did riot establish,- under the rule in the Totten case, an irrevocable trust; but the finding of the pass book in the safe deposit vault of the beneficiary necessarily implies that there was. notice by the depositor of the trust to the beneficiary. Inasmuch as notice to the beneficiary is one of the examples of an unequivocal act or declaration by which the depositor completes the gift, used by the Court of Appeals to illustrate the rule, we must hold that the notice to William H. Davis completed his wife’s gift to him and rendered the trust irrevocable. The funds, therefore, belonged to the deceased at the time of his death, and should be accounted for by the administrators.

The decree must be modified by directing that the administrators account for this money, with costs to the appellants to be paid out of the estate.

Hirschberg, P. J., Gaynor, Rich and Miller, JJ., concurred.

Decree of the Surrogate’s Court of Kings county modified in accordance with the opinion of Hooker, J., and as thus modified affirmed, with costs to the appellants to be paid out of the estate. Order to be settled before Mr. Justice Hooker. .