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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 53 The appellant claims that she is the owner of moneys originally belonging to and deposited in the sole name of her mother, the deceased, but later and at the time of the latter's death deposited in an account payable to "Kate V. Beers or Sarah E. Kelly, her daughter, or the survivor of them." Her entire theory is that she was joint owner with her mother of these moneys during the latter's life and upon her death became entitled to the whole thereof as survivor. The trial court has found against her on the crucial question of the mother's intent in making and continuing the later deposit and, therefore, she assumes the burden on this appeal of establishing *Page 55 her theory and claim as matter of law and beyond any question of fact. I think she has successfully borne this burden.
The possibility of so fixing a bank account that two persons shall be joint owners thereof during their mutual lives and the survivor take upon the death of the other is so well established that we may assume and need not discuss it.
I think also it is so apparent that it must be conceded that the account in question on its face imports such joint ownership by appellant and the deceased with final sole ownership by survivorship.
It has been written, however, in various decisions that the mere form of the account in such a case as this will not be regarded as sufficiently establishing the intent of the person making it to create a trust in behalf of another or to give to such another joint interest in or ownership of the deposit. (Beaver v. Beaver, 117 N.Y. 421, 430; Matter of Bolin,136 N.Y. 177, 179; Matter of Totten, 179 N.Y. 112, 125.)
Therefore it becomes proper to make brief reference to other facts already stated in full which tend to establish that the deceased did intend to give to her daughter the interest claimed by the latter, and that this intent was consummated in the deposit which was made and aptly and faithfully expressed in the title and form of that account.
Such facts show the deceased frequently stating to outsiders that she desired to have her bank deposits fixed so that her daughter might have or draw them at any time during her life and have them at her death; then explicitly and formally asking an official of the defendant bank "if she couldn't have her bank account fixed so that either she or her daughter could draw the money at any time, and that if anything should happen to her that her daughter could get the money without any trouble;" then, in accordance with his instructions, going with her daughter to the bank to have this arrangement perfected, and, under the instructions of the official, closing up the old account and opening the new one *Page 56 in the form stated, for the purpose of accomplishing her intent, being told as and after she performed the necessary acts that "this fixes the account so that either one can draw the money out at any time, and in the event of the death of either the survivor is absolute owner. The will, executor or administrator or either has no control whatever over the book," and that "the money was fixed so that in case anything should happen to her plaintiff could get it without any trouble, and * * * could draw the money at any time" if she "should come there to the bank." And after the signatures of both as depositors had been entered in the proper bank book, the pass book was taken by the daughter and placed in the joint and equal custody of both, and from that time to her death the deceased never did a thing which threw any shadow on her intent in making the new deposit, or indicated the slightest change in or abandonment or revocation of such intent. And further, and as illustrating the extent and absoluteness of the interest which she intended to give to her daughter in the bank accounts, we find that in the case of deposits in other banks by formal writing she made the daughter "owner and creditor" with her of all moneys deposited and authorized each or either of them or the survivor of them to draw out the whole of said deposits.
It seems to me that all of these facts demonstrate the purpose of the deceased to give to the appellant the interest which she claims with a clearness and force beyond that required by the authorities. (Mack v. Mechanics Farmers' Sav. Bank, 50 Hun, 477; Farrelly v. Emigrant Industrial Sav. Bank, 92 App. Div. 529;Mabie v. Bailey, 95 N.Y. 206; Beaver v. Beaver,supra, 431; Matter of Totten, supra; Augsbury v. Shurtliff,180 N.Y. 138, 141; Same Case, 114 App. Div. 626; affd.,190 N.Y. 507; West v. McCullough, decided without opinion, January 5, 1909 [194 N.Y. 518].)
It is true that some of the foregoing cases simply decided that the evidence there presented authorized a finding as matter of fact of a gift such as is claimed here, that being the only question presented. But principles necessarily involved *Page 57 or enunciated sustain the interpretation now placed on them as applied to the facts which have been discussed.
It remains to consider in some detail the respondents' argument that the foregoing view is incorrect or at least that there is other evidence which taken in connection with that especially referred to permits inferences sustaining the findings in their behalf.
While the counsel for respondents in disputing that the deposit was made with the intent and for the purpose claimed by Mrs. Kelly, says that on the other hand it was made and the power to draw moneys given as a matter of convenience, he very frankly admits that he does not mean any mere physical convenience. This element was not involved, for Mrs. Beers was so capable of taking care of herself and of her affairs that there was no necessity for conferring upon the daughter the power to draw money as a matter of convenience to her mother. This term of "convenience" seems rather to have been used by the court and counsel as a form of stating that the mother did not intend joint ownership but did intend something else.
In the first place it is said that Mrs. Kelly at the time of her mother's death made an admission to one of the defendants contradicting her present claim. Without quoting this admission it may be stated that it has been analyzed and that I see nothing in it which contradicts the present claim. It does not give a full history of all that was done, as actually found by the trial court, but so far as it does go it does not raise any issue with the other testimony.
In the second place, it is urged that the various wills and codicils made by the deceased are indicative of an intent on the part of Mrs. Beers to maintain her ownership and control of the bank accounts and, therefore, are contradictory of that which is claimed by appellant. There appear to be several answers to this proposition. If the deceased having an intent to give joint and surviving ownership to her daughter, consummated that intent by the performance of the necessary acts, I suppose that the original nature and effect of these acts *Page 58 would not be affected or destroyed even if subsequently her views changed, such mental change not being carried into any legal or effective revocation of that which had been done. In the Mabie case, cited supra, the person making a deposit in trust which was the subject of litigation subsequently withdrew the same and it was claimed that this indicated that he did not intend to create a trust, but Judge ANDREWS said, at p. 211: "The fact that the deposits for the plaintiff and others were subsequently * * * drawn out by Dr. Bailey, is not legitimate evidence that he did not intend when the deposits were made to create a beneficial trust for the beneficiaries named. If the withdrawal was with intent on his part to ignore the trust and to convert the money to his own use, it might be competent evidence of a change of purpose, but it throws no light on the original transaction." (See, also, Scheps v. Bowery Savings Bank, 97 App. Div. 434.)
But further than this, if it should be assumed that there was anything in the wills when executed which could be regarded as sufficient to negative the idea or counteract an intent of Mrs. Beers to create a joint ownership in a bank deposit, I do not think that it would affect this case. All of the wills and codicils admitted in evidence as bearing on this question were executed before the deposit involved in this action was changed into its present form. Those instruments, of course, if they bore on the subject at all, indicated the testator's intent at the respective dates when they were executed. Therefore, if this deposit subsequently made was at variance with any provisions in them it and not they must be controlling. Even though it be assumed that the deceased originally intended to dispose of her bank deposits by will, that would not interfere with or destroy a purpose subsequently formed and executed to dispose of them through the form of the deposits themselves as was done.
Lastly in somewhat general terms it is insisted that the deceased did not inquire about joint ownership or transfer of title; there was no idea or suggestion of a present gift or transfer; she did not part with the control of the title or *Page 59 intend to create a new kind of ownership or intend to give Mrs. Kelly the right to have an equal share of the income or by means of the transfer obtain an absolute, immediate ownership of one-half of the fund; did not intend Mrs. Kelly should draw the moneys during her life.
It seems to me that these assertions are the expression of a theory unjustifiably evolved from assumptions rather than the statement of conclusions legitimately drawn from the evidence.
It has been held so many times that courts will be controlled by the substance of a transaction rather than by the name given to it, that it is a matter of no importance that the particular terms "joint ownership" and "joint account" were not used by Mrs. Beers. The controlling question for us has been and is whether she intentionally and intelligently created a condition embracing the essential elements of joint ownership and survivorship. If she did, that was sufficient even though she did not use any particular formula in doing it. Her acts and repeated declarations indicate that she did intend to do just that which is denied, give to her daughter joint ownership in and control over this account. It is true that her daughter did not draw any checks on it during the life of the mother, but it is also true that the mother herself did not draw any checks on it during the same time. It is true that the mother did retain control over the account in that she had the right at any time to check out all of the moneys and destroy the account, but so did the daughter. For the sake of the argument we might assume that the primary purpose of the mother in creating the account was to pass the money on her death to her daughter and that she did not expect under ordinary circumstances that the daughter would draw out the money during her life any more than that she herself would draw it out. But if we assume all of this, such assumption would simply go to the expected exercise by the daughter of her legal rights rather than to the existence itself of those rights.
In short, starting with the performance by Mrs. Beers deliberately and advisedly of certain acts legally calculated and sufficient to accomplish certain purposes, and charging her not *Page 60 only as we must as a matter of law, but as we ought to as a matter of fact, with appreciation of the significance and consequences of what she did, we are unable to discover in this record any evidence of an intent not to effect that legal result which her acts naturally and presumptively did accomplish.
Some reference was made to the equities of the division of the mother's estate between the appellant and her brother, if the former's claim to these deposits should prevail. While such considerations might be helpful under some circumstances in helping us to decipher the obscure or uncertain intent of a deceased person, I do not think they are of consequence in this case in dealing with well-established acts which are not of doubtful or uncertain character. Moreover, it is possible that on the settlement of the estate of the deceased under her will such disparity as is now claimed between the provisions for the two children respectively will be avoided or be found not to exist.
The judgment appealed from should be reversed and a new trial granted, with costs to abide event.
CULLEN, Ch. J., EDWARD T. BARTLETT, HAIGHT, VANN and WERNER, JJ., concur; CHASE, J., not sitting.
Judgment reversed, etc.