Kelly v. National Savings Bank

Cochrane, J. (dissenting):

I do not think Matter of Totten (179 N. Y. 112) requires or justifies a reversal of this judgment. That case decides that a deposit by a person as trustee for another “ standing alone * * * 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.” But when such deposit does not stand alone, but as in this case must be considered in connection with other circumstances, that presumption may be overcome and the deposit may not even amount to a tentative trust. In such a case as in others it resolves itself into a question of intent. The court in the Totten case, quoting "from Beaver v. Beaver (117 N. Y. 421), said : “ We are inclined to think that to infer a gift from the form of the deposit alone would in a great majority of cases, and especially where the deposit *106was .of .any considerable amount, impute an intention which never existed and defeat the real purpose of the depositor.” It was also said: When a deposit is made in trust and the depositor dies intestate leaving it undisturbed, in the absence of other evidence, the presumption seems to arise that a trust was intended in order to avoid the trouble of making a will.” As to what was actually in the mind of the testatrix in making this deposit, see dissenting opinion in the case of Kelly v. Albany Trust Co. (124 App. Div. 101), decided herewith. The learned trial justice has found the facts in this case in accordance with the actual intent' of the testatrix and in my opinion the judgment herein should not be disturbed.

Chester, J., concurred.

Judgment reversed pn law and facts and new trial granted, with Costs to appellant to abide event.