APPEAL by the plaintiff, Margaret Matthews, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 27th day of May, 1911, upon the decision of the court rendered after a trial at the Kings County Special Term, and also from an order entered in said clerk's office on the same day dismissing the complaint upon the merits.
Charles Harwood [Martin A. Driscoll, Jr., with him on the brief], for the appellant.
Lewis C. Grover [James W. Redmond with him on the brief], for the respondent.
This is an appeal from a judgment of the Special Term in Kings county that dismissed the complaint of the plaintiff after a trial of the issues. The action was brought by the plaintiff to recover certain moneys which had been deposited in a savings bank in Brooklyn in the name of 'Mary Kelly, in trust for Margaret Matthews.' The facts appearing upon the trial, in the evidence offered by the plaintiff, were as follows: Mary Kelly during her lifetime was unmarried, and quite advanced in years at the time of the transaction in question. She had had a sister, Annie Kelly, likewise unmarried and advanced in years. Sometime prior to July, 1904, Annie Kelly died, leaving a bank account in the Brooklyn Savings Bank in form as follows: 'Annie Kelly, in trust for Mary Kelly.' On July 26, 1904, Mary Kelly went to the savings bank in question and transferred the account formerly existing in the name of 'Annie Kelly, in trust for Mary Kelly,' to a new account, in form as follows: 'Mary Kelly, in trust for Margaret Matthews (cousin).'
When this account was opened Margaret Matthews was present at the savings bank with Mary Kelly, and saw the bank book representing the new account. The learned trial court found that on said 26th day of July, 1904, Mary Kelly delivered the pass book of the savings bank account in question to Margaret Matthews for 'safe keeping,' and that Margaret Matthews retained possession of said pass book until about the 2d day of May, 1905, when it was redelivered to Mary Kelly, who retained possession of the book thereafter until the account was closed.
In 1907 Mary Kelly began to make withdrawals from the amount originally deposited 'in trust for Margaret Matthews.' These withdrawals continued at intervals until April 23, 1910, when the account was finally closed and the balance remaining therein, to wit, $1,744.30, was transferred by Mary Kelly to
another account in the same bank which stood in her own name individually. Therefore, at the time of the death of Mary Kelly, in May, 1910, no part of the original deposit 'in trust for Margaret Matthews' remained to the credit of said account.
It appears that Mary Kelly left a last will and testament at the time of her death, in which the defendant Catherine McKenna was appointed as executrix. The instrument in question was not offered in evidence, and there is nothing in the record before this court to show its provisions.
The plaintiff gave in evidence the testimony of several witnesses as to declarations of the decedent Mary Kelly after the opening of the original account, as to her purpose in opening such account 'in trust for Margaret Matthews.' The learned trial court evidently refused credence to the witnesses who testified in behalf of the plaintiff as to the alleged declarations of Mary Kelly, deceased, although as to one witness it gave credence as to one transaction she testified to, and refused it as to another transaction as to which she testified.
It is contended on this appeal that, on the findings of fact made by the trial court, judgment should have been awarded in favor of the plaintiff.
It would serve no very useful purpose to attempt to review the numerous cases which appear in our reports in relation to these savings bank trust accounts, in view of the elaborate consideration given to all preceding authorities by the Court of Appeals in Matter of Totten (179 N.Y. 112). In that case the Court of Appeals plainly endeavored to lay down a rule to cover all future controversies in court, in regard to cases of this character. This rule was announced in language as follows: '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 case the ...