I dissent. Whether when Mary Kelly opened an account with the Brooklyn Savings Bank, in form “ Mary Kelly, in trust for Margaret Matthews (cousin),” her intention was to create an irrevocable or. only a tentative trust, is a question of fact. (Matter of Totten, 179 N. Y. 112.) While delivery of the pass book to the suggested beneficiary, or notice to her of the opening of an account in such form, are evidential facts bearing upon the question of intent, I do not think that they are necessarily conclusive. Particularly is this so when, as here, a court has found that the delivery to plaintiff was not an absolute and unqualified one, but only as custodian. As against the evidential facts of delivery of such a character, and notice, are the facts which are inconsistent with an intent to create an irrevocable trust, viz., that the pass book was redelivered to the depositor, and that in her lifetime she withdrew the whole of the sum on deposit and redeposited the same to the credit of an account in her individual name. The burden of proof was upon plaintiff to establish depositor’s intent. I think that the most that plaintiff can claim is that the circumstances pointed as much in the direction of an irrevocable as of a tentative trust. That is not sufficient to entitle her to recover.
Judgment reversed and new trial granted, costs to abide the event.