On the 10th day of October, 1896, Eliza Ann Growther, an unmarried lady, resident at Glenham in Dutchess county, was in possession of two passbooks of the defendant The. Mechanics Savings Bank, one, No. 71, representing with accrued interest to the time of the commencement of this action, $2=,971.*38, and the other, No. 708, representing with like accrued interest, $1,485.68. The money was hers. On the day named she took the books to the bank, and told the treasurer she . was going to a hospital in Brooklyn for the purpose of submitting to an operation, and feared she would never return. She instructed him to make the books payable in trust for the Board of Domestic Missions of the Reformed Ohurch in America, adding that she was on her way to Newburgh, and would call for the books on her return. The treasurer took the books from her, agreeing' to comply with her directions and stated that on her return from Newburgh he would have an order prepared for her to sign requesting the transfers of the accounts. He did not state to her that a rule of the bank required a written order, nor did she ever give such an order. He did make the transfers, writing in each book the words: “ Order Oct. 10-96, Eliza Ann Growther in trust for Board of Domestic Missions "of the Reformed Church in America,” and on the same day transferred the accounts on the books of the bank in the same way. He never saw Miss Growther again, but the books. after like transfer were returned to her, and were placed by her in a sealed envelope indorsed in her own hand with the words “ Send this to the Mechanics’ Savings Bank, Fishkill Landing, Eliza Arm Oirowther.” The books in the envelope so indorsed were placed by her in a tin box also sealed, and after her death were delivered by the defendant James E. Dean, her executor, to the bank, in whose possession they have since remained. Miss Growther died at the hospital about two weeks after the transfer was made, leaving a will dated September 3, 18-96, in which she devised and bequeathed substantially all her property to the plaintiff, but which devise and bequest being made within two months of the testatrix death, fails, because of the prohibition contained in section 6 of chapter 319 of the Laws of 1848.
It is apparent, from this summary of the. facts, that an effective trust was declared by the deceased for the benefit of the plaintiff. This is the doctrine of all the cases from Martin v. Funk, 75 N. Y. *597134, to Cunningham v. Davenport, 147 id. 43, and is stated by the court in the latter case as follows (page 47): “ The doctrine laid down by this court in the previous cases amounts to this, that the act of a depositor in opening an account in a savings bank in trust for a third party, the depositor retaining the possession of the bankbook and failing to notify the beneficiary, creates a trust if the depositor dies before the beneficiary, leaving the trust account open and unexplained.”
The cases of Beaver v. Beaver, 117 N. Y. 421, and Proseus v. Porter, 20 App. Div. 44, cited by the defendant Dean, executor, do not conflict with the doctrine referred to. The former was the case of an alleged gift not involving the declaration of a trust, and in the latter the court, while commenting on the circumstances of the delivery of the bank-book to the beneficiary as a strong circumstance in favor of the trust, distinctly refers to it (page 46) as an act which “ goes further than is positively requisite.” The cases all turn on the question of intent, which, in the absence of other explanation, is controlled by the terms of the deposit. In this case the intention to create a trust is greatly strengthened by the prior will, which the deceased will be presumed to know would prove inoperative should she die within two months of its date. As has been seen she apprehended a fatal result of the surgical operation, and created the trust in view of that hazard and in order to insure a disposition of her property in accordance with her wishes.
The estate cannot destroy the trust because the bank acted on a verbal order instead of a written order. The precise terms of the rule are not in evidence, but the rule is manifestly for the protection of the bank and its depositors to guard against error, and by way of furnishing a justification to. the institution for changing its accounts. Under the facts of this case it will be deemed to have been waived. Nothing was lacking to the creation of a valid trust, and the plaintiff is entitled to the judgment demanded, with costs.
Ordered accordingly.