General
Kathryn E. Larkin, Now Known as Kathryn L. Mayer, Respondent, v. The Greenwich Savings Bank and Another, Defendants and Earl Daffer, as an Executor, etc., of Mary Leonard, Deceased, Appellant
241 A.D. 874·New York Supreme Court, Appellate Division·1934·NY
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Opinion
Kathryn E. Larkin, Now Known as Kathryn L. Mayer, Respondent, v. The Greenwich Savings Bank and Another, Defendants and Earl Daffer, as an Executor, etc., of Mary Leonard, Deceased, Appellant.
[MAJORITY]
Order granting summary judgment reversed on the law and the facts, with ten dollars costs and disbursements, and the motion demed, with ten dollars costs. The manner in wMch the savings bank account was opened made Kathryn E. Larkin the ostensible ..epositor or donor and Mary Leonard the ostensible beneficiary or donee. This is so although there is no claim by the plaintiff that the moneys thus deposited in fact belonged to her. It appears affirmatively in this record that the ostensible depositor, plaintiff, did not have possession of the bank book when Mary Leonard died, and it also appears affirmatively that Mazy Leonard did have that possession and that her executor now has possession of the savings bank book. Under such circumstances, prima facie proof of an absolute trust in favor of the deceased beneficiary appears in this record, under Matter of Totten (179 N. Y. 112, 125), subject to such evidence as plaintiff may adduce (if not barred by section 347 of the Civil Practice Act) of the terms of the trust if they militate against decedent’s right to the money on any theory which may arise in the evidence. Prima facie it appears that the depositor had made a tentative trust in favor of Mary Leonard and had completed the gift and made the trust absolute by delivery of the pass book to the ostensible beneficiary. The circumstances of the transactions between the parties may shed light on its true nature and show to whom the money belongs. It may not be said that plaintiff is entitled to summary judgment in the absence of such proof, which should be adduced on a trial. Lazansky, P. J., Kapper, Carswell, Seudder and Tompkins, JJ., concur.