In re Halpern

Desmond, J.

Appellant-executrix seeks by this discovery proceeding to bring into the estate of her deceased husband, of whose will she is the sole beneficiary, four savings bank accounts. Each of those accounts was opened by the husband (decedent), fifteen months before his death, in his own name in trust for respondent, his infant grandchild, th^it is, as “ Totten trusts ”. The balances in those four accounts, when he died, totaled about $14,000. His gross estate (other than those bank accounts) was of the value of about $3,300.

Petitioner’s theory is that “the aforesaid purported trust accounts are illusory in that decedent retained full and complete control and exercised full dominion over said accounts at all times ”, and that they are, therefore, assets of the estate. Eespondent’s submission is that the bank accounts, as bona fide Totten trusts, became respondent’s absolute property, at decedent’s death.

The will, naming petitioner wife as executrix and sole beneficiary, was executed in 1939. In 1946, at about the time decedent and appellant ceased living together, these four accounts were opened by decedent in four savings banks. Decedent afterwards made several deposits in one of the accounts and one deposit in another, but made no withdrawals from any of them, and never in any way disaffirmed or revoked any of the trusts. There is testimony that decedent several times told people that he wanted his granddaughter Sandra (respondent) to have his bankbooks. Before his death he turned over one book to Sandra’s mother. The other three books were in his safe-deposit box when he died.

The Surrogate held that the transfers were all illusory, and that the estate owned the entire proceeds thereof. In so ruling, the Surrogate did not find that there was in fact anything unreal or fictitious about the setting up of these deposits, or that decedent had any intent except that his granddaughter should have them at his death. The Surrogate’s opinion was, in essence, this: that under Krause v. Krause (285 N. Y. 27), and Burns v. Turnbull (294 N. Y. 889), a trust by a husband, made for the the purpose of defeating his wife’s expectant interest in his property, is illusory and void.

The Appellate Division modified the Surrogate’s order by directing that there should be paid into the estate not the whole balance of the accounts, but so much only as should be necessary to give the widow her share, as in intestacy (Decedent Estate Law, §§ 18, 83), of the whole property left by her husband, including the bank balances. The Appellate Division, like the Surrogate, concluded that these transfers were illusory, but it is clear again that the appellate court, like the trial court, found them illusory, not on any proof that they lacked actuality or reality, but solely because they were made for the purpose of keeping the widow from collecting that share of her husband’s property allotted to her (under certain circumstances) by the two above-quoted sections of the Decedent Estate Law.

We hold that respondent’s legal position is correct, and that these Totten trusts were, on this record, valid, effective and not illusory. It is, perhaps, regrettable that any husband resorts to such transfers to'keep his money from his wife. But Totten trusts, if real and not merely colorable or pretended, are valid transfers with legally fixed effects. Section 18, as this court pointed out in Newman v. Dore (275 N. Y. 371, 379), citing Leonard v. Leonard (181 Mass. 458), gives to a wife, not an absolute right which attaches to all her husband’s property as soon as he acquires it, but “ only an expectant interest in the property of her husband which becomes part of his estate ” (see, to the same effect, Judge Cranp’s statement in Herrmann v. Jorgenson, 263 N. Y. 348, 356). That Newman decision said (and we repeated the same language in Krause v. Krause, supra, p. 31) that “ the only sound test of the validity of a challenged transfer ” is “ whether the husband has in good faith divested himself of ownership of his property or has made an illusory transfer.” In Krause v. Krause, applying that test, we concluded that, on the unusual facts there established, the weight of evidence favored the holding of the trial court that decedent Krause had never intended that his Totten trust, made in favor of his daughter who lived in a foreign country and from whom he had not heard in years, should have any real effect, or that the money should ever go to the faraway daughter. But there is no evidence in the present record which would justify any such finding. All the proof here is that decedent wanted his granddaughter to have the bank balances, and that he put, and left, the money in the banks so she would get it. Censurable though his motive may have been, he was doing what the law allowed. Unworthiness of motive could not make illusory an otherwise complete transfer. It is true that in all three of the eases cited by the Appellate Division (Newman v. Dore, Krause v. Krause and Burns v. Turnbull, all supra) the attempted trusts (a Totten trust in the Krause case, inter vivas trusts in the others) were held illusory. But in each of those cases the finding of illusoriness was made on a factual showing of unreality, and not solely because the transfers operated to, and were intended to, defeat the widow’s expectancy.

There is nothing illusory about a Totten trust as such. Wo take notice that great numbers of them exist, many in favor of young children. Their legal effect was pronounced long ago (1904) in Matter of Totten (179 N. Y. 112, 126), as follows: “ In case the depositor dies before the beneficiary without revocation, or some decisive act or declaration of disaffirmance, the presumption arises that an absolute trust was created as to the balance on hand at the death of the depositor. ’ ’ That rule must be applied here, in the absence of any proof that these transfers were “ intended only as a mask for the effective retention by the settlor of the property which in form he had conveyed” (Newman v. Dore, 275 N. Y. 371, 381, supra). Since there was no such evidence here, these Totten-trusts were like all other Totten trusts, and, when the depositor died, they were completely effective (1 Scott on Trusts, § 58.3, p. 360), and had the automatic and immediate consequence of putting absolute ownership in the infant beneficiary. Perhaps it may seem that we are 1 putting the legislative policy of section 18 to rout by use of the - court made (but legislatively recognized, see Banking Law, § 239, subd. 2) rule of the Totten case. But the Legislature has made no effort to interfere with the impact of Totten trusts in this connection, nor has the Legislature, despite the test announced in 1937 in Newman v. Dore, done anything to save a wife from disinheritance by means of an effective trust erected in a husband’s lifetime, for that purpose. It is the simple ’ fact that section 18 does not affect the disposition of property inter vivas (Newman v. Dore, p. 378).

Applicable here is the language and thought of Inda v. Inda (288 N. Y. 315), as to the effect of a joint savings bank account, as against a claim of illusoriness. This court noted, in the Inda opinion (p. 317), that the Banking Law preserves as to joint accounts (just as it does as to Totten trust deposits), “ the form of deposit * * * as a lawful and convenient method for the transmission of property.” This court concluded, in the Inda case, that, whatever may have been the actual intent of the depositor, everything required by law for the creation of a joint tenancy had been done, and, therefore, the settled legal result followed, as of course.

Two other matters should be noticed. First, we point out that this widow, being the sole testamentary beneficiary, had no right to file, and could accomplish nothing by filing, a notice under section 18 (supra) of intention to “ take against the will ”. If, as executrix (see McQuaide v. Perot, 223 N. Y. 75, 79) she had been successful in getting these moneys into the estate, she would have, as beneficiary, gotten the full benefit thereof. That brings us to the second matter. The Appellate Division, reasoning further from its conclusion that these trusts were illusory because destructive of section 18 benefits, decided that only so much thereof should be set aside as was required to put the widow in the section 18 position. Strictly, the correctness of that part of the Appellate Division’s order is not before us, since the infant took no appeal and there is thus no objection, in this court, to that partial award to petitioner. However, the question is important, and if we affirmed without discussing it, we would be thought to be in agreement with the Appellate Division. We see no power in the courts to divide up such a Totten trust and call part of it illusory and the other part good. The only test is that quoted above, from Newman v. Dore (supra) said Krause v. Krause (supra), and the result of its application would necessarily be either total validity or total invalidity, as to any one transfer.

For the reasons given, the order should be affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate.