Opinion
April Term, 1898.
Bruce R. Duncan, for the appellant.
H.B. Woods, for the respondent.
This is a suit in equity in which the plaintiff seeks to establish his title to certain moneys which were on deposit in a savings bank in the name of his mother at the time of her death. The defendant claims half the fund as the child of a deceased brother of the plaintiff. The learned trial judge dismissed the complaint at the close of the plaintiff's case, saying: "I will find that the deceased made no declaration of a trust. There is not a word of evidence to indicate it."
This disposition of the action must have proceeded on the assumption that the plaintiff could not succeed in the suit unless he proved a declaration of trust on the part of his mother. Even so, I am inclined to think that the plaintiff had made out his case in view of the rule that any declaration, however informal, will suffice to establish a trust in personal property, provided it clearly manifests the intention of the person making it. ( Day v. Roth, 18 N.Y. 448, 453.) But it was not necessary that the plaintiff should prove the declaration of any trust at all. He alleged in his complaint that the money in the savings bank was his property; that he placed it in the hands of his mother, to be held and kept by her for him, and to be returned to him at any time upon his request; and that at the time of her death she had it on deposit in the bank. These allegations were amply supported by the proof, which showed that the sum in bank was wholly made up of the plaintiff's personal earnings, of which he had constituted his mother the custodian, and that she repeatedly recognized his ownership thereof. Without reviewing the testimony in detail, it is enough to say that, upon the record before us, the plaintiff's case is established with such cogency that the decision against him must be regarded as so clearly against the evidence as to demand a reversal of the judgment on the facts.
All concurred.
Judgment reversed on the facts and the law and a new trial granted, costs to abide the final award of costs.