Morris v. . Sheehan

Andrews, J. In his lifetime Francis J. Lynch made a deposit in the East River Savings Institution in the Dame of “ Francis J. Lynch in trust for Bridget Farley,” the appellant. Of it she had no knowledge. At his death this account amounting to about $4,500 still stood *368 as originally made unrevoked and unchanged. Nor was it disposed of by the will of Father Lynch, except as it may have been included in a general residuary bequest. Claimed by both the appellant and the respondent the trial court found as a matter of fact that when he made the deposit Father Lynch made it for his own personal convenience and with no intention of creating any trust in favor of the appellant. A judgment was directed for the respondent and this judgment has been unanimously affirmed by the Appellate Division. The only question before us, therefore, is whether the findings that the deposit was in fact made as stated’are inconsistent with this result. In Matter of Totten (179 N. Y. 112) we held that such a deposit does not establish an irrevocable trust during the lifetime of the depositor. It is a tentative trust merely, revocable at will until the depositor dies or completes the gift in his lifetime by some unequivocal act or declaration. In case, however, 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. We have never held, however, that the presumption of which we spoke was a conclusive one. Indeed in the case cited we said: “ When a deposit is made in trust and the depositor dies intestate leaving it undisturbed, in the absence of other evidence, the presumption seems to arise that a trust was intended in order to avoid the trouble of making a will.” (p. 124.) And in Tierney v. Fitzpatrick (195 N. Y. 433) we impliedly held that this presumption could be contradicted by evidence as to the circumstances under which the deposit was made. , We reversed that case only because certain evidence offered on the subject was incompetent. Therefore, the trial court was entitled to find that the presumption spoken of had been overcome in view of the *369 evidence on this subject before it. That there was sufficient evidence to justify the finding is conclusively determined by the unanimous affirmance of the Appellate Division. The judgment of the court below should be affirmed, with costs. Hiscock, Ch. J., Cardozo, Pound, McLaughlin and Crane, JJ., concur; Hogan, J., concurs in result. Judgment affirmed.