Alonzo Balch, the testator, on March' 15, 1873, opened two savings bank deposits in different banks, and to the credit of each account deposited'$250. Each account was opened in the name of “Alonzo W. Balch in trust for David C. Balch,” the latter being the son of Alonzo. But a single amount was drawn from each account in 1876, and additional sums were paid in to each account at various times. On February 13, 1902, David G. Balch, the son, died, leaving a widow, Adelaide M. Balch, his sole legatee and executrix. The father, depositor of the funds, died on December 21, 1903, having made no withdrawals from or deposits to the *180credit of either account since his son’s death, or for a long time prior thereto.
There is evidence that the attention of Alonzo Balch was called to the bank books after his son’s death, and shortly before he himself died, but he did not ^ct in relation thereto. ", - .
Thé appellant, as .executrix of David 0. Balch, deceased, claims to be entitled to receive the sums now on deposit in the savings banks to the credit of the aforesaid .accounts. As pointed, out by the Court of Appeals in a recent case (.Matter of Totten, 119 1SF. Y. 112),. the'law respecting so-called “ sa vings'bank trusts ” is of recent growth, and for some time there was no little doubt ás to their true status and character. The Court of Appeals, in thé cáse jpst cited, has established a rule respecting them, which is stated to have been arrived at after much reflection,, as follows: “ A deposit by one person of Ms 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 dr declaration, such as delivery of the pass "book or notice to the beneficiary. In cáse-the: depositor dies before the beneficiary without revocation, or some decisive act or deciará- ■ tion of disaffirmance, the presumption arises that an absolute trust was created as to the balance dri hand at the death of the depositor.” As this rule was formulated with great care, we aré to assume that the words in which it is couched were advisedly chosen. It will be seen upon a careful reading that the trust is, in the first place, described as a “ tentative trust,” by which we understand a suggested, or proposed trust, not Completed or consummated'. It will also be noted that the subject of the trust, when it finally becomes consummate, is the balance on hand at the- death of the depositor. It.would seem to follow that until the depositor’s death the funds on deposit are impressed, with no trust in the sense that any/title thereto, actual or beneficial, vests in the proposed beneficiary unless the depositor shall have' completed the gift in the manner suggested by the case above’cited. As to him the tentative trust remains inchoate and. incomplete. . The appellant, as executrix of David 0., Balch, can have no right to the moneys on deposit, unless her testator had, at the moment of his death,' some property *181right in or title to the money then on deposit to the credit of the accounts. That he had acquired no such right or title as a gift i/nter vivos, is .settled by authority. (Beaver v. Beaver, 117 N. Y. 421.) There seems to be like authority for the proposition that David ,C. Balch had no such present right or title, at the time of his death, as the proposed beneficiary of a trust. (Cunningham v. Davenport, 147 N. Y. 43.) In the latter case one John Cunningham had opened a savings bank account in the name of “ John Cunningham, in trust for Patrick Cunningham, his brother.” Patrick died before the depositor, and three days later John caused the account to be changed to his own name, and afterward drew out all the money. Patrick Cunningham’s administrator claimed to be entitled to the moneys on deposit at the time of his decedent’s death. This claim was disallowed by the Court of Appeals.
While not so stated in words by that court, it must have been considered that Patrick Cunningham, at the time of his deafh, had no interest in or title to the fund which passed to his legal representative. Otherwise, the latter’s claim would have been impregnable. Furthermore,, the tentative trust indicated by the manner of the deposit was proposed only for David C. Balch, the depositor’s son, who was a young lad when the deposits were first made. There is nothing whatever to indicate that the father intended that, in any event, any person other than his son should become the beneficiary of the accounts. 'We are of the opinion that the tentative trust suggested by the form in which the savings bank accounts were opened never became consummated so as to vest in David C. Balch, in his lifetime, any present title or interest in the moneys deposited to the credit of the accounts; that upon the death of the sole proposed beneficiary before the depositor the. tentative trust terminated ipso facto, and that the funds on deposit thereafter remained the sole property of the depositor unimpressed by any trust, tentative or consummate, and that no action was necessary on the part of the depositor to terminate the trust. Consequently, nothing passed to David C. Balch’s executrix, and she can establish no claim to the moneys in question. We find no error in the exclusion of evidence offered by the executrix. That she" or her husband knew of the fact of the deposit would be wholly immaterial, unless that fact had been communicated by Alonzo Balch, the depositor, and she cer*182tainly was incompetent to prove any personal transaction with , him. Mor would it be significant or material to show that the husband’s mother contributed some of the money which Alonzo Balch deposited.
The order appealed from should be affirmed, with costs. ■' .
Patterson, P. J., Laughlin and Clarke, JJ., concurred;' Ingraham, J., dissented.