On the 20th of January, 1910, Sarah L. Willis entered into a written trust agreement with the Fidelity Trust Company of Rochester, the predecessor of the defendant, by which she transferred to the trust company, as trustee, fifteen $1,000 bonds producing income at the rate of five per centum per annum.
The agreement recited the donor’s desire to create a trust to provide an income for the support and maintenance of her friends, Charles A. Bruff and Ardelia Bruff, his wife, during their lives and ultimately to transfer the principal of such trust to three named corporate beneficiaries. The income, according to the trust instrument, less commissions, was to be used and expended for the support and maintenance of Charles A. Bruff and Ardelia Bruff “ during their joint lives, and thereafter for the support and maintenance of the survivor of them during the life of each such survivor.” The instrument then continued as follows: “ While said Ardelia Bruff is living, such entire net income shall be paid over to her, except that if she and said Charles A. Bruff shall cease to live together as husband and wife, then such entire net income shall be divided between them and paid over to them or expended for their benefit, in equal parts.” The principal after the death of both Charles and Ardelia was to be transferred by the trustee to the three corporate beneficiaries.
Charles and Ardelia Bruff continued to live together as husband and wife until the wife’s death. The income was regularly paid by the trustee to Ardelia Bruff throughout her life. All payments received by her, with one slight exception not material here, were immediately deposited with the trustee bank in an income account in the name of Ardelia Bruff. On November 1, 1917, a few months before her death, $500 was withdrawn from this account for the purchase of a Liberty bond, the subscription for which was made through the-trustee bank. This bond was retained by Ardelia Bruff until her death and was evidently included in a legacy in her will. The amomit of accumulated income, with interest, remaining in the account with the defendant at the time of Ardelia’s death was $6,199.56.
Ardelia Bruff died February 19, 1918, and from that time the income arising from the trust was paid by the trustee to Charles Bruff until his death on January 7, 1920.
The administrators of his estate now make claim to the deposit above mentioned standing in the name of Ardelia Bruff with the trustee bank on the theory that the unexpended income from the *69trust fund was a joint account and fund which upon the death of Ardelia became vested in Charles, the survivor, as his absolute property. The defendant on the other hand contends that this deposit is a part of the personal assets belonging to the estate of Ardelia Bruff and must* be distributed in accordance with her will, of which the defendant is executor.
In view of these conflicting claims, the question naturally arises — What was the intent of Sarah Willis, the donor, in creating this trust fund? It is quite clear that she desired both Charles and Ardelia Bruff to have some interest in the trust to the end that both might receive support and maintenance from its income during their joint lives and thereafter the survivor should have the entire income, and in the contingency that husband and wife should separate, the income should be divided between them. Did she, however, intend that the legal title to the income should be in both Charles and Ardelia Bruff, either jointly or in common (Ardelia being a bare custodian, agent or naked trustee in receiving payment) or, on the other hand, did she intend to vest the legal title in Ardelia subject to an equitable obligation to expend the amounts received both for her husband’s and her own support? (Ireland v. Ireland, 84 N. Y. 321; Oberndorf v. Farmers’ Loan & Trust Co., 208 id. 367; Shangle v. Hallock, 6 App. Div. 55.)
The members of this court are not in agreement upon this question. A majority, however, are of the opinion that if the instrument does not clearly provide that Ardelia was the owner of the legal title to the income, there is at least an ambiguity in the trust agreement in this respect. Assuming such ambiguity to exist, it is permissible to examine into the surrounding circumstances to determine what was in the mind of the donor at the time she entered into the trust agreement.
Charles Bruff had been a bookkeeper and accountant and was employed for a long time by different concerns in which the husband of Sarah Willis and his brother Isaac were interested. Neither Charles nor Ardelia Bruff was related by blood to the Willis family. Their social relations were friendly. Bruff was not only the bookkeeper of the business concerns in which the Willis family was interested, but also kept the private books of different members of the family, including Sarah L. Willis, the donor, and Isaac Willis. Isaac Willis made some substantial provision in his will for Ardelia Bruff. Before the creation of the trust Charles Bruff had left the employ of the Willis concerns and engaged in business enterprises on his own account with signal lack of success. In 1898 a judgment for upwards of $5,000 was entered against him and a business associate. In 1900 another judgment *70for about $3,000 was recovered against him and other business associates. And on January 24, 1910, four days subsequent to the date of the trust agreement, still another judgment for nearly $600 was docketed against him individually. The first judgment has never been satisfied of reco'rd, although a claim is made that it has been paid. The second and third remained unsatisfied until after his death. In September, 1913, another judgment for a smaller amount was entered against him.
In August, 1907, Sarah Willis made a will in which she provided for the creation of a trust of $15,000, the income to be paid to Ardelia Bruff during her life and after her death to Charles, if he should survive, with remainder over to certain other beneficiaries. In January, 1910, Bruff was apparently out of employment, had been unsuccessful in his business ventures, owed money, and with his wife was living at the home of his wife’s mother. At this time Sarah Willis was nearly ninety years of age. Henry Willis, a son of her husband’s brother Isaac, had been acting as her adviser for some years. He informed her of many of the conditions relating to the Bruffs which have been stated and it is probable that Sarah Willis, through her close acquaintance, was well informed as to Bruff’s financial condition. Henry Willis advised Sarah Willis that if she did not need the income herself, it would be well for her to make the part of her will providing for the Bruffs operative at once by the execution of a trust agreement. At the same time he told her specifically that Charles Bruff hád borrowed the money left by Isaac Willis to Ardelia, and that it had all been used up; that Bruff had been out of employment for a considerable time; that certain shares of stock which had been given to Bruff had been sold and the proceeds lost through an unfortunate investment; that he had very little money for the maintenance of himself and his wife; and that he was in debt. It was with this knowledge and upon this advice that Sarah Willis substituted the trust agreement for the provisions in favor of the Bruffs in her will. The fact must have been clearly established in her mind that if the Bruffs were to enjoy her gift, Charles was not the person to receive it. All the circumstances, therefore, confirm the view that it was the intention of the donor that so long as Ardelia Bruff and Charles A. Bruff lived together as husband and wife, Charles A. Bruff should not hold the legal title to any part of the trust income, but that the legal interest should be in Ardelia subject to the obligation to expend the income for the maintenance and support of herself and her husband, and we conclude that such is the construction to be given to the instrument.
The equitable right of Charles to support and maintenance out *71of the income never ripened into a legal right to any part of moneys on deposit.
Subsequent to the creation of the trust, the financial condition of the Bruffs changed entirely. Bruff got employment and worked steadily at a substantial salary, so that his earnings together with the property obtained by Mrs. Bruff through inheritance from her mother, were sufficient to maintain husband and wife without expending any part of the income from the trust fund. Of course, the donor, Sarah Willis, contemplated the expenditure of the trust income, and the saving of it was a condition not provided for in the trust instrument.
The Bruffs then found themselves with two sources of income for their support. They could have used both, or one, or a part of both. They made choice of the trust fund for savings. This must have been by agreement between them. They were at liberty to divide the fund, to keep it as a joint item, or to give it to one or the other. The fact that it was deposited in the wife’s name does not alone negative the existence of an agreement that it should be jointly owned. (Matter of Klenk, 165 App. Div. 917; affd., 214 N. Y. 715.) There is no direct evidence as to what the agreement was between them. We must seek the proof in the surrounding circumstances for it is inconceivable that the husband and wife did not talk over and agree upon the policy of diverting this money from the purpose for which it was provided. They were free to act as to all income received. The trustee had no discretion but to pay over the income to Ardelia, and when it was so paid over, the trustee’s duties were done. (Leggett v. Perkins, 2 N. Y. 297.) The financial history of Charles, which we have found to be sufficient reason to induce the donor to put the legal title of the income in Ardelia so that she might spend it for the support of herself and husband, also furnishes an adequate ground for husband and wife to agree that the money should continue to belong to Ardelia. The continuing deposits of the income payments in Ardelia’s name without interference on her husband’s part, together with his treatment of the money as belonging to his wife’s estate after her death, and the actual judicial settlement of her estate on that basis, point with sufficient certainty to the existence of such an agreement.
It is also significant that Ardelia Bruff made a will in which after certain legacies she gave the balance of her estate to a trustee to apply the income therefrom to her husband’s support and maintenance during his lifetime with power to the trustee to apply the principal also to the same purpose if necessary. Aside from the deposit here in question Ardelia Bruff possessed at her death *72personal property equal in amount to the deposit. This will adequately protected Charles in leaving the legal title to the moneys derived from the trust in Ardelia’s ownership. It is just such a provision as would naturally have been agreed upon between husband and wife. It assured to the husband the full use' of the property for his support and maintenance, safe from the demands of creditors and from improvident investment.
We reach the conclusion, therefore, that Charles voluntarily surrendered to his wife all his equitable interest in the fund and that his administrators are entitled to no claim upon the moneys deposited with the defendant bank.
The judgment appealed from should be reversed, certain findings of facts and conclusions of law disapproved and new findings made, and judgment directed for the defendant dismissing the plaintiffs’ complaint, with costs.
Hubbs, P. J., and Davis, J., concur; Clark and Taylor, JJ., dissent in separate opinions.