This is.an appeal from an order of the Special Térrn, upon á petition and notice of motion to compel the appellant George E. Altstadt to deliver to the petitioners two savings bank books showing accounts in the name of “Diedrick Woltman in trust for Herman "Woltman.”
The petition alleges that the petitioners were by order made and entered .on the 6th: day of May, 1907, appointed the committee of the person and property of Diedrick Woltman, an incompetent person, and duly qualified and entered upon the duties of such committee; that the petitioners, were informed and believed that' George E. Altstadt or his attorney had in their possession certain *799property belonging to the incompetent, to wit, the bank book of the German Savings Bank, No. 304,082,' showing an account of Died-rick Woltman in trust for Herman Woltman in which, there is an apparent balance of $1,370.16; the bank book of the Dry Dock Savings Institution, No. 470,006, showing an account of Diedrick Woltman in trust for Herman Woltman in which there is an apparent balance of $2,833.06, and refused to turn over same to the petitioners as committee, although duly demanded.
The appellant Altstadt filed an affidavit in which he admitted that he had the bank books demanded in his possession, and alleged: “ That the said Herman Woltman is dead, having departed this life on the 17th day of February, 1907; that the said Herman Woltman left a last will and testament in which your deponent, the said George E.Altstadt is named as executor; that said last will and testament was duly filed for probate in the office of the Surrogate’s Court of the County of New York; that a citation was thereupon duly issued and served on all of the heirs at law and next of kin of said decedent and was returnable on the 15tli day of April, 1907; that on the return day of said citation, none.'of the said heirs at law or next of kin appeared except the only infant in the proceeding, one Frederick Maxwell, an infant of the age óf twenty years, who appeared by his special guardian, Daniel J. Mooney; that no objections have been filed to the probate of the said will, and said probate only awaits the report of the said special guardian; that deponent kotows of his own knowledge that the deposits made in said accounts were made by the said Herman Woltman personally out of his own savings and not by the said Diedrick Woltman, or from any savings of the said Diedrick W oltman ; that since the appointment of the committee for said Diedrick Woltman there has been no appointment of any trustee by any court of competent jurisdiction for Herman Woltman to succeed the- said incompetent Diedrick Woltman.”
The question whether the moneys deposited in the savings banks in the name of “ Diedrick Woltman, in trust for Herman Woltman,” belonged to Diedrick Woltman,,the incompetent, and, hence, should be put into the possession and control of the committee of his property, or belonged to Herman Woltman, the deceased, and, hence, passed to the custody and control of the executor appointed by his *800will, cannot be determined upon this proceeding. Therefore, the cases cited by the respondent upon the question of the tentative or revocable trusts created by accounts opened in savings banks of the kind illustrated in the matter at bar aró not conclusive here.
The question of title to the fund must be decided otherwise than • by an order made upon a petition to compel the delivery of- the-bank- books. In Matter of Totten (179 N. Y. 112) the Court- of Appeals said : “A deposit by one person of his 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 or declaration, such as delivery of the pass book or notice to the beneficiary. . In case the depositor -dies before the beneficiary without revocation or some decisive act or declaration of disaffirmance, "the presumption arises that an absolute trust was created as to the balance on' hand at the death of the depositor;” . •
The court said in Garvey v. Clifford (114 App. Div. 193): “ The depositor did not die before the beneficiary without revocation, but, on the contrary, the alleged -beneficiary died before the depositor. Whatever intention he may have- had - so far as. Johanna was concerned, if he had any, was defeated by her death.”
Both of those cases proceeded upon the assumption that .the money deposited at the' time of the deposit was the money of the depositor, and laid stress upon the point that this fact, standing alone,'did not establish an irrevocable trust ;■ and, further, that there was an absence of proof of some unequivocal act or declaration, such as a delivery of the pass books or notice to the beneficiary, ■ necessary to destroy the inference of a tentative trust.
Mothing is alleged in the petition in the matter at bar save the title under which the accounts were opened. The answering affidavit sets up as matter of fact that the moneys deposited were at the time of deposit, not the moneys of the depositor, but of Herman Woltman, and this, coupled with the possession of the bank books by Herman Woltman or his executor, would be evidence upon a ■trialof the-issue tending to establish ownership in the fund in..the decedent,- and not in the incompetent. As possession of the bank books is such evidence of title, under the facts disclosed upon this *801record, it would be improper to change that possession pendente lite. The parties should be left to litigate the real question between them in an action.
It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Ingraham, McLaughlin, Houghton and Lambert, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.