Christina McGovern, who had long been a domestic servant, died on the 15th day of December, 1917, at the age of more than eighty. She had made deposits of savings through the course of years, without withdrawals, in the defendant bank, so that shortly before her death $8,096.49 stood credited to her account. On or about the 12th day of December, 1917, she placed her mark at the foot of a paper which read as follows: “ Manufacturers National Bank of Troy, N. Y. Pay Trans to Joint a /c Margaret Hayes and Christina McGovern or Bearer Seventy-eight hundred one 69/100 Dollars, on account of Money standing to my credit or subject to my control in your Bank, as a Special Deposit on interest per
named, together with interest, made up the total sum of $8,096.49 then in her account. She passed this paper with her bank book across the table at which she was sitting, toward *451Margaret Hayes, saying, “ Now, this paper is signed, and I want you to attend to that business as soon as you can.” Margaret Hayes took the paper to the defendant bank, and on the twelfth day of December a transfer of the entire fund was made on the books of the bank to the joint account of Margaret Hayes and Christina McGovern. Three days later Christina McGovern died. There was no other competent proof than the facts recited tending to establish a transfer to Margaret Hayes of a legal title to the fund. No consideration for a transfer was proven; no relationship or indebtedness between the parties was shown; no evidence of an intent to give, or of a delivery of the subject of the gift, other than as stated, was presented. On the other hand, letters written by Margaret Hayes to various relatives of Christina McGovern, after her death, show conclusively that the parties themselves did not understand that any transfer of title had been accomplished. Thus on December 17, 1917, Margaret Hayes wrote to a Mr. Cowley: “ She [Christina McGovern] has some money in the bank here which she has in my name which I will send to her relatives.” And also, “ Your aunt made no will that I know of. The money she has is in my name.” On the same day she wrote Mrs. Neill, “ She left some money in the bank, which she put in my name, which I will send to you and your other relatives.” In this manner Margaret Hayes repudiated any possible inference from the acts related that a transfer of legal title in the fund was intended to be made.
The paper authorizing the bank to change the form of the deposit did not of itself operate as a transfer of title to the fund. It was directed only to the bank, and the direction if followed would have effected no transfer. It was said in Beaver v. Beaver (117 N. Y. 421): “ We are inclined to think that to infer a gift from the form of the deposit alone would, in the great majority of cases, and especially where the deposit was of any considerable amount, impute an intention which never existed and defeat the real purpose of the depositor.” In Matter of Bolin (136 N. Y. 177) it was said of a deposit of moneys by their owner to the credit of herself and another: “ The only presumption would be that the depositor so arranged for the purposes of convenience.” In West v. McCullough (123 App. Div. 846) it was said: “ In case a *452person deposits his own money in a savings bank in the name of himself and another, not his wife, the presumption is that it was done for purposes of convenience only.” The Beaver and Bolin cases were referred to with approval in Kelly v. Beers (194 N. Y. 49), where the deposit was payable to “ Kate V. Beers or Sarah E. Kelly, her daughter, or the survivor of them,” the court remarking: “ It has been written, however, in various decisions that the mere form of the account in such a case as this will not be regarded as sufficiently establishing the intent of the person making it to create a trust in behalf of another or to give to such another joint interest in or ownership of the deposit.” In Clary v. Fitzgerald (155 App. Div. 659) it was held that a deposit in a savings bank to the credit of “ Mrs. Kate Connelly or Mrs. Kate A. Fitzgerald, either or survivor, may draw,” presumptively created a joint tenancy, but this decision was placed upon the provisions of section 144 of the Banking Law (now Banking Law, § 249), which creates a presumption of joint tenancy in the case of a deposit of money to the credit of the depositor and another person and “ in form to be paid to either or the survivor of them.” It was stated in that case that had it not been for the provisions of the statute no presumption of joint tenancy would have arisen, and that the statutory presumption itself would disappear if proof of a contrary tenor was forthcoming. The statutory provisions do nof apply in this case, for the reason that there was no authorized deposit to the credit of Margaret Hayes and Christina McGovern “ in form to be paid to either or the survivor of them.” The authorities are uniform that no presumption arose from the form of the paper in question that a transfer of title was intended. The delivery of the bank book to Margaret Hayes by Christina McGovern evidenced no intention to transfer title. (Matter of Bolin, supra.) . It was said in that case of the custody of a bank book by an apparent transferee: “ That is perfectly consistent with the motive of convenience; ” and, again: “ There were no words of gift, and the receipt and holding of the pass-book were consistent with a mere custody, or agency. The law never presumes a gift.” Moreover, the statements made by Margaret Hayes in letters to the relatives that the. deceased left money in the *453bank “ which she put in my name,” are conclusive proof that no transfer of title to the fund was made.
The moneys now in controversy were drawn out by Margaret Hayes after the death of Christina McGovern from the account which stood to the credit of the two women in the defendant bank, and placed to the credit of herself and her husband, who are now the plaintiffs. When the plaintiffs placed in evidence a bank book showing that these moneys stood to their credit they made a prima facie case for recovery. The moment it appeared, however, that these moneys were derived from a fund formerly standing to the credit of Christina McGovern, the burden of going forward with the proof shifted, and the plaintiffs were compelled to establish that legal title passed to them by a transfer through Margaret Hayes from Christina McGovern. This burden the plaintiffs have not successfully borne.
It is argued that Christina McGovern, if she did not intend a gift to Margaret Hayes, did at least intend that Margaret Hayes should receive the fund in trust for distribution among her relatives. The answer is that the supposed trustee is not here a plaintiff claiming as trustee. Instead thereof two individuals are plaintiffs claiming in their own right. Even if Margaret Hayes alone were plaintiff claiming as trustee it would be necessary for her to allege and prove the trust. To the validity of an express trust the naming of cestui que trust, and of a trust fund are necessary. It has not been proven that the deceased directed Margaret Hayes to distribute the fund among cestui que trust named by her in proportions by her given. The letters of Margaret Hayes were competent proof only negatively as admissions against her interest to indicate that a gift was not intended. They cannot be used affirmatively to establish a trust on the part of Margaret Hayes in favor of relatives of the deceased designated by her in a case where the existence of a trust has not been asserted. The plaintiffs must rest their case exclusively upon a voluntary gift from Christina McGovern to Margaret Hayes, and in this they have utterly failed.
For these reasons the judgment and order should be reversed..
All concurred, John M. Kellogg, P. J., with a memorandum, except_Woonward, J., dissenting, with an opinion.