Matter of Farrell

Fuld, J. In April of 1945, Mrs. Anna Farrell was declared ah incompetent. At that time, she had money in three bank accounts: two were in her own name, one in the Public National Bank and Trust Company (amounting to about $990), the other in the Greenwich Savings Bank (amounting to $9); the third, in the East Eiver Savings Bank (amounting to about $1,679), Ayas in her name “ in trust for daughter Lucy Farrell.” The latter, one of several children of the incompetent, claimed that the money in those bank accounts belonged to her by reason of the fact that she had, over the years, turned those funds, as well as additional money, over to her mother for safekeeping. The committee for the incompetent, acknowledging that the ;claim “.is justly due to the claimant ”, petitioned the Supreme *131 Court for an order “ authorizing * * * directing ” her, as committee, ‘ ‘ forthwith to pay and turn over ’ ’ all the moneys on the hanks. The court-appointed special guardian asserts in this court that, while it is his belief that “ morally she [claimant] is entitled to receive the deposits in the name of the incompetent,” he considers the evidence not sufficiently strong to support her claim “ in view of the fact that the incompetent is unable to answer it.” The referee, designated to hear and report, denied the claim and that determination, confirmed by the court at Special Term, was affirmed by the Appellate Division, although two justices dissented, voting to reverse and grant claimant’s application in full. Little purpose is to be served by extended discussion of the facts or lengthy consideration of the law. The case is an unusual one, and decision herein will be limited to its peculiar facts. Suffice it to note that in 1941 Mrs. Farrell opened the account in the East Biver Savings Bank “ in trust for daughter Lucy Farrell ”, and that two years later, in September, 1943, she delivered that passbook to Lucy. Under the circumstances of this case — peculiar as we have characterized them — delivery of that passbook transformed the tentative trust created by the deposit into an irrevocable trust. (See, e.g., Imperatrice v. Imperatrice, 298 N. Y. 549; Matter of Totten, 179 N. Y. 112, 125-126.) Accordingly, there must be a reversal of the determination below insofar as it affects the moneys on deposit in the East Biver Savings Bank. The order of the Appellate Division should be modified by directing entry of an order granting application of the committee to the extent of deciding that the deposit in the East Biver Savings Bank, bearing account No. 177328 and entitled “ Mrs. Anna Farrell in trust for daughter Lucy Farrell ”, constitutes an irrevocable trust in favor of Lucy Farrell terminating upon the death of Anna Farrell, and, as so modified, affirmed, without costs. The order should be modified in accordance with the foregoing opinion, and, as so modified, affirmed, without costs.