MATTER OF GEORGE

MATTER OF GEORGE. Cayuga Surrogate's Court; February, 1889. 1. Trust; deposit in savings lank.] A mother made deposits in & savings bank in the name of her son, who was thriftless, and subsequently drew out the fund and deposited it in her own name and afterward gave it to a friend (who had been a friend to the son), and asked her to be a mother to him, and finally made the friend her executrix. Meld, that although the son had been wholly ignorant of the transactions, the original deposit created an irrevocable gift which he could enforce against the executrix. •2. Executor and administrator, accounting. \ The surrogate has jurisdiction on an accounting to determine conflicting claims as to a gift by the decedent. Judicial settlement of accounts of Jennie E. Pearson, as ■executrix, etc., of Hattie P. George, deceased. The facts appear in the opinion, H. V. Howland, for executrix. S. E. Payne and E. C. Aiken, for Charles L. George and Boyes P. Jenness. John M. Brainard, special guardian. [MAJORITY — The Surrogate.] The Surrogate. The above named executrix filed her petition in February, 1888, asking the judicial settlement ■of her accounts, and to that end that all persons interested in the estate of the decedent be cited to attend such settlement. The parties so cited were thé husband of the decedent, her •son by a former marriage, and three infant grandchildren, the descendants of a deceased son. Letters testamentary were issued to the petitioner, July 29, 1886, the same month in which the will of the decedent was admitted to probate in this court. The will is dated December 29, 1882. It contains directions as to funeral, numerous specific legacies of clothing, jewelry, books and other small .articles, a very large number of which are to the executrix. It is stated that these things are given to her “ because she is the only one who has been kind to Hoyes,”—meaning the son of the testatrix. The third clause of the will reads : “ Hoyes P. Jenness, —all my moneys in the Auburn Savings Bank to be given him at my sister Jennie S. Pearson’s discretion.” A few ¡books and household articles are given Hoyes. A gold watch and chain and bead watch case are given to the granddaughter, Ella Jenness. No other provision is made for the grandchildren, except in the thirteenth clause, which is-“Noyes, Ellis, G-eorgie, Charles and Jennie, contents of little fur trunk,” and in the sixteenth clause: “ Three boxes of handkerchiefs for Jennie to dispose of between Noyes, Ellis,. Georgie and herself.” The only provision in the will in favor of the testator’s husband, is a legacy of Mrs. , satin dolman and jet jewelry, “to be disposed of among his friends,” and a pair of opera glasses. An inventory was filed November 20, 1886, made up of books, furniture, jewelry and clothing, amounting to §86.80. In the account the executrix charges herself with the amount of the inventory, and with money received from bank, $212.-25, and credits herself with having disposed of the inventoried property, in accordance with the terms of the will, and with having paid bills to the amount of §288. A long list of articles is set forth with the statement that they remained in the house, and were claimed and taken by the-decedent’s husband. In the account, it is stated that a portion of the goods mentioned in the will, including the watch and chain bequeathed to Elbe Jenness, were given away by the testati-ix in her lifetime. Objections to the account were filed by Noyes P. Jenness and decedent’s husband, alleging that assets not included in the inventory have come into the hands of the executrix, to the amount of about §3,600, that of the amount, $212 was a gift causa, mortis from the testatrix to her husband, and had them delivered to the petitioner for him, and the balance was held by the testatrix at her decease in trust for her son Noyes, and the representatives of her deceased son, Joseph Kendall Jenness. The executrix claims that the testatrix gave to her, in-December, 1884, the sum of $3,360, and afterwards the-further sum of $40. The accounting involves the determination of the adverse-claim to this money; to the $212 alleged to have been given-to the husband of the testatrix, and the watch and chain mentioned in the will as a legacy to the grandchild. The proof shows that, in 1864, the testatrix opened an account with the Auburn Savings Institution in the name of her son, Hoyes P. Jenness. The money was soon drawn out, and account balanced. On May 21, 1867, a deposit of $800 was made to the credit of the same party. Other credits were made and cash deposited, and interest credited until January, 1878, when the total amount to Hoyes’ credit was $1,567.13. Credits of interest were entered in the book semi-annually until June 30, 1884, and from January, 1878, to January, 1881, money to the amount of $500 was drawn out by Mrs. George ; and it appears that all or most of it was sent by her to Hoyes. According to the evidence, Hoyes, on account of waywardness and improvidence, was considered by his mother to be incapable of taking care of money, and he was not made acquainted with the fact of the deposits, until after his mother’s death. On October 15, 1867, Mrs. George opened an account at the same bank, in the name of her son, Joseph K., which, with the deposits and accumulated interest, amounted, in January 1882, to $2,104. Ho part of these deposits was drawn out of the hank until January, 1882, when $50 was drawn. The same amount was drawn out in August of that year, and $100 in January, 1884. At the time of drawing the $100 from the first account in January, 1878, the treasurer of the savings bank refused to pay any money to Mrs. George, unless there was something in the book to show she had the right to draw it. She said she wanted the boys names in the book, so that, in case of her death, the money would go directly to them. It was then suggested by the treasurer, and agreed to, that, without erasing either of the names, there should he added the words, “ To the order of Mrs. O. L. George.” This was then done in both books, under the names of the boys, respectively. On December 12, 1884, the testatrix signed a cheek, written by the executrix, in these words: “ Auburn •Savings Bank. Pay to Mrs. I. -E. Pearson all moneys belonging to N. P. Jenness also a check in these words : •“ Auburn Savings Bank. Pay to Mrs. Isaac Pearson all money remaining in bank belonging to Joseph K. Jenness.” Upon the following day, the executrix received from the' bank, upon the first named check, the sum of $1,013.96, and, upon the other, the sum of $2,073.59. Of the amount, $3,500 was paid by the bank in checks, payable to Hattie P. George or bearer, and the balance was paid to her in money. The checks were cashed and the proceeds, with the money received from the savings bank, delivered by the executrix to Mrs. George. On December 18, 1884, $460 of the money was deposited' in the National Bank of Auburn, to the credit of Harriet Pearson, George and Mary J. Pearson, payable to either of them. A new certificate for $500 was taken by the executrix in her name, March 27, 1889, and the other indorsed by her and surrendered. She says the $40, which made the even amount, Mrs. George had taken from the money drawn from the savings bank. In about two weeks after the money was drawn from the savings bank, Mrs. George delivered $2,200 of the proceeds to the executrix who, on January 2, 1885, deposited it in the banking house of William H. Seward & Co., of the City of Auburn, taking a certificate of deposit therefor, in the name of Mrs. Harriet Pearson, George and Mary Jane Pearson, payable to the •order of either of them, with interest, if left three months. Mrs. George died on February 17, 1889. On July 1, 1885, the executrix indorsed the certificate in her individual name, presented it at the bank, received thereon $1,000 and the interest, and took a new certificate for $1,900, in the names of Mrs. Harriet Pearson George, and Mary Jane Pearson, payable as before. On January 4, 1886, this certificate was indorsed by her, and surrendered, and another certificate for the same amount taken, payable as the preceding ones were. This has since been cancelled, and the proceeds drawn by the executrix. The balance of the money, received by the decedent, was-given away or disposed of in some way by her, and none of it appears to have come into the hands of the executrix, except what is accounted for, or was paid to the decedent’s-husband. The testatrix asked the executrix, upon certain conditions, to give the doctor, her husband, $200, and told her to tell him it was Noyes’ money. It is testified by the executrix that, at the time the-$2,900 was delivered to her, Mrs. George said: “ Jennie,, dear, that is for you .... For who has been so kind a friend to Noyes and me as you ?” She said she had tested my friendship, and knew I had a mother’s heart, and asked me if 1 would be a mother to him. I said the money belonged to him. I said, when she handed me the money,, this is for Noyes, she said: ‘No, no, no’ ; she said atone time she had the bounty money during the war, and she had no peace until he spent it all. She said it would never do to let him know there was a penny, and she asked me lo-promise not to let any one know that there was any money, not even Isaac.” I asked her if I should let the doctor, her husband, know, she said : “I can’t leave this with the doctor. Jennie, you know I could never ask him to do anything, for he' wouldn’t be-troubled with this.” She spoke about the bounty money. She had no peace as long as there-was any of it left. I took the money home with me.” From this transaction the executrix claims she became the-absolute owner of the $3,400 deposited in the two banks, by virtue of a gift inter vimos from the testatrix. It is contended upon the other side that the beneficial. interest in these moneys passed to the sons of the decedent when she-deposited the sum to their credit, and that she thereafter was merely a trustee for them, and that she had no power to dispose of the money in violation of the trust. The transfer of property by a declaration of trust depends upon the same facts that are necessary to create a. valid gift i/nter vivos, except it is not essential that the-property should be delivered to the cestui que trust, or that-he should be informed of the trust. The donor or creator of the trust must have relinquished all ownership of the property. He must have absolutely parted with the beneficial interest. If he reserved any control of the property, it can only be as trustee or representative of the cestui que trust. The case of Martin v. Funk et al (75 N. Y. 134) is a leading one upon this subject. S. deposited in the savings bank two sums of money, belonging to her, declaring that she wanted the accounts to be in trust for M. and BL who were sisters. She retained the pass book, and the money remained in the bank, with its accumulated interest, until the death of S., except she drew out one year’s interest. It was held that the transaction was a valid declaration of trust; that the title to the deposits passed to M. and EL, and that S. constituted herself trustee and held the boobs as such, although M. and EL had no knowledge of the transfer. In the case of Willis, as administratrix, v. Smyth (91 N. Y. 297) it was held that depositing a sum of money in the savings bank, to the credit of the depositor in trust for her daughter, entitled the latter to the fund, although one such deposit has been drawn out by the mother, and she had received interest upon the account. In the case of Mabie v. Bailey (95 N. Y. 206) it was held that the deposit of money in a bank, to the credit of the depositor as trustee for another, is prima facie evidence of an intent to transfer the beneficial interest in the fund. It was intimated that, “ Surrounding circumstances might be shown to vary or explain the apparent character of the acts and intent with which they were done,” which was left undecided by the case of Martin v. Funk, supra. In the case of Barker v. Harbeck (17 N. Y. State, Rep. 678) it was proven that the defendant’s testatrix, Elvira Harbeck, in 1859, deposited with the Bowery Savings Bank, $350.06, “ For Henrietta Barker,” who was her sister. Some years after the deposit was made, Mrs. Harbeck drew out the money, and applied it to her own use. The action was brought by the representátives of Henrietta Barker against the executors of Mrs. Harbeck, to recover the amount of the deposit. The plaintiff recovered damages. The court, upon appeal, in affirming the judgment, say: “Mrs. Harbeck either deposited Henrietta Barker’s money, or constituted herself a trustee of the fund by a completed gift of the money deposited.” In the case of Scott v. Harbeck (49 Hun, 292) brought by a cestui que trust, claiming under the same party, who created the trust passed upon in the case last above cited, it was held that a similar deposit transferred the property, and that the act of withdrawing the money subsequently by the party who made the deposit did not affect the title of the cestui que trust. In the case at bar,- the deposit of money in the savings bank to the credit of the sons of the testatrix is'prima, facie evidence of an intention to transfer to them the ownership of the funds. The declaration contained in the checks, by which the money was drawn out of the bank, “ all money belonging to X. P. Jenness,” and “ all money belonging to Joseph K. Jenness,” are evidence that the testatrix still considered the money to be the property of her son. All the evidence, taken together, satisfactorily proves that Mrs. George intended the money to be used for the benefit of her sons, except that she assumed to give away and use for other purposes a small sum of it, a short time before lief death. Her control of the money and her withdrawal of it from the bank, are consistent with the theory of a trust, and her subsequent possession must, upon authority, be held to be in the capacity of trustee, rather than as the owner of the property. Even the statements, testified to by the executrix, from which she claims there was a gift to her, show . that the money was delivered to her by the testatrix because she thought she would be a mother to her son, and that he ought to be kept in ignorance of the fact that there was ¡my money, and, when asked if the doctor, her husband. ¡should not be told, she said, “I can’t leave this with the doctor, ... he wouldn’t be troubled with it.” The decedent could not have thought the doctor would have objected to the trouble, if she was speaking of a gift. The intention must have been to make the executrix a trustee, rather than the beneficiary of a gift. The fact of the subsequent deposit to the order of both the decedent and the executrix, indicates that the parties so understood it. No ■other explanation has been given. The rule was laid down by Justice Stoby, that a party for whose benefit a trust is created, may enforce.its execution, although it was made without his knowledge, if it had not in the intermediate time been revoked by the person who created the trust [Ecp Jurisprudence, §§ 972-1015). There was at the time some uncertainty as to whether trusts, created without pecuniary consideration, were revo■cable, before they came to the knowledge of the beneficiaries; but in the case of Martin v. Funk, it was said, that, if the author of the trust entertained a belief that the ■deposits might be withdrawn during her life, and the money converted to her own use, it would not change the legal effect of her action, although she did not intend the objects of her bounty to know of her gift until after her ■death. It was decided in the case of Mabie v. Bailey, supra, that .a trust like the one under consideration, once established, no power of revocation having been reserved, was irrevocable. It follows that the acts of the testatrix in the case at bar, in the withdrawal of the deposits and transfer of the money, could not affect the rights of the objects of her first gifts, if .she so intended. Of the money transferred to the executrix, the evidence leads to the conclusion that it was the intention ■of the decedent to preserve part at least for the benefit of her unfortunate son. It is contended that this court has no jurisdiction to direct distribution of this property, and that-the alleged trust having been found to be valid, the proceeding, so far as this fund is concerned, should be dismissed-Section 2743 of the Code provides: “ Where an account is judicially settled, as prescribed in this article, and any part'of the estate remains, and is ready to be' distributed to-the creditors, legatees, next of kin husband, or wife of the decedent, or their assigns, the decree-must direct the payment and distribution thereof to the persons so entitled, according to their respective rights.” It was-held in the case of Collyer (4 Bern. 24), that the surrogate’s Court had jurisdiction, under' this section, to try and' determine the validity of a trust like the one in question, since without such determination, the amount of the distributive share of each of the next of kin could not be fixed. So in the case of Fowler v. Lockwood (3 Redfield, 465), it was decided that the surrogate, as an incident to his power to determine questions concerning distributive shares had the power to decide as to the validity of alleged gifts causa mortis by a decedent. This case came under the revised statutes (Vol. 2, p. 95, section 71), from which section 2743 of the Code is taken. In the case of Killick, as Committee, etc. v. Monroe County Savings Bank (17 N. Y. State Rep. 283), the question arose whether the widow of a lunatic, who was hisadministratrix, was the owner of money which had been deposited in a bank in their names jointly. The court, at-general term, in this department, held that upon her accouning, as administratrix, the question as to whether it belonged to her individually or -as administratrix can be determined. The rule was stated in Riggs v. Cragg (89 N. Y. 479, 492), that where the right to a legacy depends upon a question of construction of a will, which must be determined before a decree for distribution can be made, the surrogate has jurisdiction . . . upon a final accounting, where all parties interested are before the court, to determine such construction, as incident to the authority to make distribution. The court of appeals has alsode.cided that the validity of a release by party claiming property in the hands of an administrator or executor may be determined by the surrogate upon an accounting (Harris v. Ely, 2 N. Y. 138). See the Matter of Bead (41 Hun, 95), in the fifth department of the supreme court, to the same effect. In view of the authorities quoted, there can be no doubt that this court, upon the judicial settlement of the accounts of this executrix, may decide whether there was a gift of the money drawn from the savings bank to the executrix, and to that end, to decide whether the money was the property of the decedent. The evidence fails to establish such a gift, and, as before stated, it is sufficient to convince the court that the funds deposited in the Auburn Savings Institution, afterwards the Auburn Savings Bank, were the property of Noyes P. Jenness and Joseph K. Jenness, respectively. As it was held by the testatrix in trust, upon her death her executrix took the title to the same as trustee by virtue of her office (Emerson v. Bleakley, 2 Abb. Ct. of App. Dec. 22, 27), and must account therefor as executrix. Joseph K. Jenness being dead, his interest can only be paid to his legal representatives, and, as 'the testatrix used a part of the funds in her lifetime, such representative should be made a party to this proceeding, before it would be proper to make distribution of the funds. As to the alleged gift of $212 to decedent’s husband, the necessary elements do not exist to constitute a valid gift inter•vivos or causa mortis, as was practically decided in an action brought in the supreme court to determine the title to the money. Moreover, it is shown that this money belonged to the testator’s son, and could not have been given as alleged. As to the gift of a watch, the evidence does not sustain a gift, audit should be delivered to the party named in the will, or its value accounted for by the executrix. Costs are allowed to the petitioner, to Noyes P. Jenness, and to the special guardian.