I am of opinion that there was a' fair question of fact for the con- . sideration of the jury and that errors prejudicial to the plaintiff were *627committed upon the trial. The opening of the account constituted a tentative trust merely, revocable at will, but if the testator subsequently delivered the pass book to the plaintiff, who was the beneficiary, then the trust became irrevocable, and while the bank was probably justified under its rules in allowing the depositor to withdraw the fund on presentation of the passbook, without knowledge of its delivery to the plaintiff, yet that does not relieve the estate of the testator from liability for his appropriation of the fund to his own use. There was not only evidence of the delivery of the pass book to the plaintiff, but there was other evidence of admissions and declarations by the testator tending to show that he had established the trust for the benefit of the plaintiff.
At the request of counsel for the defendant the court specifically instructed the jury that the fact that the testator drew out the money deposited in the account and used it for his own purposes, was “ a circumstance to be taken into consideration ” by the jury “in.determining the question as to whether or not he intended to create a trust in favor of Frank Tierney.” To this instruction counsel for the plaintiff duly excepted. In Mabie v. Bailey (95 N. Y. 206) the Court of Appeals, in a similar case, unanimously held that the withdrawal of the fund by the depositor thereof “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,” and sustained a. direction of a verdict in favor of the plaintiff against the estate of the depositor. That case is cited without disapproval in Matter of Totten (179 N. Y. 112) which,, as I read it, was not intended to overrule any of the decisions on this subject, for the learned judge writing for the court says, that in laying down the rule quoted in the prevailing opinion the court was “ guided by the' principles established by our former decisions.” It is unnecessary to consider the other alleged errors for this alone, in my opinion, requires a reversal.
Judgment and order affirmed, with costs.