Albertina L. Robinson, as Administratrix, etc., of Frederick H. Robinson, Deceased, Respondent, v. Charry C. Appleby and Silas F. Overton, as Executors, etc., of Helen C. Pratt, Deceased, Appellants

Albertina L. Robinson, as Administratrix, etc., of Frederick H. Robinson, Deceased, Respondent, v. Charry C. Appleby and Silas F. Overton, as Executors, etc., of Helen C. Pratt, Deceased, Appellants. Deposit in a savings bank “ Helen 0. Pratt in trust for Freddie Hemenway Robinson” —it creates an irrevocable trust—if the depositor withdraws the deposit she is liable for the amount withdrawn and six per cent interest thereon. In 1887 Helen C. Pratt deposited $3,695 in a savings bank and received a pass book headed “Helen C. Pratt in trust for Freddie Hemenway Robinson.” She made several deposits in, and withdrawals from, the account, and on May 31, 1893, when the amount on deposit was $2,740; surrendered the pass book and ■ transferred the balance to a new account headed “Helen 0. Pratt in trust for Freddie H. Robinson. ‘ Note.’— Hot to be paid to F. H. R. until he is SO years of age.” She also signed the following paper: “ I desire to open an account with The Riverhead Savings Bank in my name in trust for Freddie H. Robinson. Said account to be governed by the By-laws, Rules and Regulations of the said Institution. After my death the balance then due on said account is not to be payable to said Freddie H. Robinson until he "is thirty years of age.” The second pass book was never given to Mrs. Pratt, but was retained by the bank. January 20, 1894, Freddie H. Robinson died, and four days later Mrs. Pratt withdrew the entire deposit, which at that time amounted to $2,850.68. In an action brought by the administratrix of Freddie H. Robinson against the executors of Mrs. Pratt, it was Held, that a legal trust in favor of Freddie H. Robinson was created at the time of and by the original deposit; That, as no power of revocation was reserved, Mrs. Pratt could not revoke the trust, and that her acts, subsequent to the making of the original deposit, were not evidence of her original intention; That interest at six per cent should be charged against her estate, from the time that the fund was drawn out of the bank. Appeal by' the defendants, Gharry 0. Appleby and another, as executors, etc., of Helen 0. Pratt, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in thé’office of the clerk of the county of Suffolk on the 19th day of June, 1901, upon the decision of the court rendered after a trial at- the Suffolk Special Term. ^ Timothy M. Griffing, for the appellants. Thomas J. Bitch, Jr., for the respondent. [MAJORITY — Goodrich, P. J.:] Goodrich, P. J.: Helen C. Pratt deposited $2,695 in the Riverhead Savings Bank in February, 1887, and received a pass book headed “Helen 0. Pratt in trust for Freddie Hemenway Robinson.” Freddie was her grandson. The pass book contained other entries which show that on September 17, 1889, she withdrew $1,000,- and on January 10, 1891, deposited $934.63, which, with previous deposits "and credited interest, made the aggregate deposit $3,000. On January-26, 1893, she withdrew $500¿ On May 31, 1893, the amount on deposit including interest was $2,740. On that day she surrendered the pass book and transferred the balance of $2,740 to a new account headed “ Helen O. 'Pratt in trust for Freddie H. Robinson. Note.’ — Not to be paid to F. H. R. until he is 30 years of age.” Mrs. Pratt signed-a paper reading as follows: “ I desire to open an account with The. Riverhead Savings Bank in my name in trust for Freddie H. Robinson. Said account to be governed by the By-laws, Rules and Regulations of the said Institution. After my death the balance then due on said account is not to be payablé to said Freddie H. Robinson until he is thirty years of age.” This second pass book was never given to Mrs. Pratt, but was always retained by the bank. The account was closed by Mrs. Pratt on January 24, 1894, when she drew the entire deposit, which, including interest, amounted to $2,850.68. The bank at the same time took a receipt in full, sighed “ Helen O. Pratt in trust.” Freddie died on January 20, 1894, four days before the withdrawal. In April, 1888, Mrs. Pratt had made a will in which she gave all her real and. personal estate to trustees for the support of her husband and two grandchildren, Arthur and Freddie, and provided that the trustees in their discretion might “ furnish each of them a sum, after arriving at twenty-one years of age, not exceeding three thousand dollars, to go into business with, or to invest in a farm.” On January 23, 1894, three days after the death of Freddie, Mrs. Pratt altered her will by a codicil by which she directed the trustees’ to apply the income of her estate to the support of Arthur, to the extent of $3,000 yearly, if he requested it, until he arrived at the age of thirty years, and then to pay him one-lialf of his property absolutely, and the income of the other half, with other provisions in case of his death without issue before reaching the age of thirty years. Three questions are presented: First. Did Mrs. Pratt when she made the original deposit intend-to create a trust for Freddie ? Second. Can her subsequent acts be declared evidentiary of her intention in originally making the deposit ? Third. What interest should be charged against Mrs. Pratt’s estate ? We have had occasion to consider the first question in several cases, noticeably in Robertson v. McCarty (54 App. Div. 103), opinion by Mr. Justice Hirschberg, and in Meislahn v. Meislahn (56 id. 566), opinion by Mr. Justice Jenks. The law as specially adapted to this case is stated in the former opinion, viz., that it is the settled law of this State that (p. 104): “ The intent of the depositor at the time of the deposit determines the nature and legal effect of the act, and all the surroundings, facts, circumstances and declarations will be taken into consideration on the question of intent, but the deposit in the form of a trust unqualified and unexplained creates a trust at the timé, which once legally established cannot be revoked, in the absence of a reservation of the power of revocation.” Applying this law to the facts of the case at bar, we are of opinion that a legal trust was created by Mrs. Pratt at the time of and by the original deposit, and that as she reserved no power of revocation she had no power to revoke the trust, and, this being true, her subsequent acts are not evidence of her original intention. This was the finding of fact by the learned justice at Special Term, and we approve such finding. Interest should be allowed on the amount drawn Out of the bank, at six per cent from the time it was drawn, and the judgment must be modified in this-respect. The amount drawn out was $2,850.64; and it was drawn on January 24, 1694. As thus modified the judgment should be affirmed, without" costs of this appeal to either party. All concurred. Judgment modified in accordance with opinion of Goodrich, P. J., and as modified affirmed, without costs.