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In Matter of Totten, 179 N. Y. 112, 71 N. E. 748, 70 L. R. A. 711, 1 Ann. Cas. 900, the court formulated the rule which was to be applied in determining the rights and interests of parties in savings bank accounts similar to the one here under consideration. It said:

"A deposit by one person of his own money in his own name as trustee for another, standing alone, 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, such as delivery of the passbook or notice to the beneficiary. 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."

Under this rule the deposit in the form in which it was made created a tentative trust, revocable at will. It could be made irrevocable only (a) by some specific act or declaration by the depositor, or (b) by the death of the depositor before the beneficiary, without revocation. It is urged that this rule does not apply, since the defendant, prior to the time the money was withdrawn and the plaintiff became 21 years of age, exhibited the passbook to her, and declared to her and others that the amount of the account was for her and intended to be for her, "and that upon her coming of age she would be entitled to get the same as her property."

The passbook, according to the allegations, was not delivered to the plaintiff, and the declarations of the defendant were not, in my opinion, sufficient, within the rule above quoted, to create an irrevocable trust. At most, they indicated an intention on the part of the defendant, at the time they were made, that the plaintiff was to have the money represented by the passbook when she became 21 years of age. There are no allegations in the complaint, or any from which it can be inferred, that the defendant intended to give the fund, or any interest therein, to the plaintiff in præsenti. The declaration that the plaintiff was to have the property when she became 21 years of age negatives the idea that any present interest in the deposit was to pass to her until that time. The declaration in each instance was, "upon the plaintiff becoming of age she would be entitled to get the deposit as her property." Prior to her becoming 21 years of age, it was a tentative trust merely, revocable at will. The fact of the withdrawal of the fund before the plaintiff reached her majority was a decisive and conclusive act of disaffirmance on the part of the defendant.

Tierney v. Fitzpatrick, 122 App. Div. 623, 107 N. Y. Supp. 527, in some respects is quite like the present case. There it was sought to take the case out of the rule laid down in Matter of Totten, supra, by showing that the depositor took the passbook to the house of the plaintiff and stated to him:

"Here, Frank, here is the book. I have started an account in the bank, so if anything would happen to me you would have something to fall back upon.

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And then the book was put in a safe in plaintiff's house, to which the depositor also had access. It was held that such declarations and act did not make the trust irrevocable, inasmuch as it negatived the idea that any present interest was to pass to the cestui que trust during the lifetime of the depositor. It is true that the decision of this court was reversed (195 N. Y. 433, 88 Ν. E. 750), but solely upon the ground that the trial court erred in admitting evidence of declarations made by the depositor after the money had been placed in the savings bank, to the effect that the reason he had opened the account. in the form which he did was that he already had as much money in the bank in his own name as he was permitted to draw interest upon. Matter of Pierce, 132 App. Div. 465, 116 N. Y. Supp. 816, does not seem to me to be in conflict with the views above expressed. There a father deposited money in a savings bank, in trust for his children, placed the passbook in a safe deposit box to which they had access, and stated that the deposit would belong to them when they arrived at their majority. After all of the children had become 21 years of age, he stated to one of his children, in reply to a request that the account be transferred to her, that the accounts already belonged to her, since she was 21 years of age, but she had better leave them, as they were so that he could take care of them when he took care of his own accounts. The accounts remained as they were until after the father's death, and it was held that the gifts became irrevocable prior to his death, and for that reason were not subject to a transfer tax. In that case there appeared a present intention on the part of the father to make the gift. They were to have the money when they arrived at 21 years of age. After they became 21 years of age, his declaration was that the money belonged to them.

The judgment appealed from, therefore, is reversed, the demurrer sustained, with leave to plaintiff to serve an amended complaint upon payment of the costs in this court and in the court below.

INGRAHAM, P. J., and CLARKE, J., concur.

LAUGHLIN, J. I am of the opinion that the proper construction of the statement by the settlor of the trust is that the trust was to terminate when the beneficiary attained the age of 21 years, and not that it was revocable. I therefore dissent.

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(Supreme Court, Equity Term, Monroe County. March 22, 1913.)

1. GIFTS (§ 38*)-UNDUE INFLUENCE- "SPIRITUALISM."

"Spiritualism" is a form of religious belief which should not be inquired into in a judicial proceeding, and undue influence of a donor is not to be inferred merely from the fact that he and the donee were Spiritualists.

[Ed. Note. For other cases, see Gifts, Cent. Dig. § 74; Dec. Dig. § 38.* For other definitions, see Words and Phrases, vol. 7, p. 6610.]

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

2. GIFTS (§ 38*) -"UNDUE INFLUENCE."

"Undue influence" means any improper or wrongful constraint, urging, or persuasion, whereby a party's will is overpowered, and he is induced to dispose of his property otherwise than he would if left to act freely and of his own volition, and whatever disturbs his free act and constrains a person to do with his property what is really against his will and purpose, and which he would not have done if left to himself, is undue influence, whether exercised by physical force, threats, or coaxing. [Ed. Note.-For other cases, see Gifts, Cent. Dig. § 74; Dec. Dig. § 38.* For other definitions, see Words and Phrases, vol. 8, pp. 7166-7172.]

3. GIFTS (§ 38*)-"UNDUE INFLUENCE."

The influence which the law regards as undue and illegal must destroy the free agency of the disposing party; but, no matter how slight it may be, if his free agency is destroyed, it destroys also the act resulting therefrom.

[Ed. Note. For other cases, see Gifts, Cent. Dig. § 74; Dec. Dig. § 38.*] 4. GIFTS (§ 38*)-UNDUE INFLUENCE.

It would not be sufficient to avoid gifts that they were obtained by legitimate influence resulting from honest and disinterested advice.

[Ed. Note.-For other cases, see Gifts, Cent. Dig. § 74; Dec. Dig. § 38.*] 5. GIFTS (§ 36*)-RIGHT ΤΟ ΜΑΚΕ.

A man may dispose of his property as he chooses if he is of sound mind, and his disposition thereof is his free and voluntary act, understood by him.

[Ed. Note. For other cases, see Gifts, Cent. Dig. § 72; Dec. Dig. § 36.*]

6. GIFTS (§ 38*) -UNDUE INFLUENCE.

If the donee takes advantage of an intimate association to subdue and control the mind of the donor and deprive him of his free agency, that the parties are old friends, and that the donee has been kind to the donor, will not make it any the less undue influence.

[Ed. Note. For other cases, see Gifts, Cent. Dig. § 74; Dec. Dig. § 38.*] 7. GIFTS (§ 49*) -UNDUE INFLUENCE-EVIDENCE.

Evidence of undue influence must be of the clearest and most convincing character, and that which raises a mere suspicion is insufficient. [Ed. Note.-For other cases, see Gifts, Cent. Dig. §§ 95-100; Dec. Dig. § 49.*]

8. GIFTS (§ 47*) -UNDUE INFLUENCE.

When the parties do not deal in terms of equality and the stronger has seemingly obtained an unfair advantage over the weaker, acquiring a large amount of property from the sick person in her charge, transactions effected under such circumstances must be presumed void.

[Ed. Note. For other cases, see Gifts, Cent. Dig. §§ 81-86; Dec. Dig. § 47.*]

9. GIFTS (§ 47*) -FRAUD AND UNDUE INFLUENCE-EVIDENCE.

In a suit to set aside gifts on the ground of fraud and undue influence, facts disclosed by the evidence held to make a prima facie case, which shifted to defendant the burden of proving by clear and satisfactory evidence that the transfers in question were free and voluntary.

[Ed. Note. For other cases, see Gifts, Cent. Dig. §§ 81-86; Dec. Dig. § 47.*]

10. GIFTS (§ 49*) - FRAUD AND UNDUE INFLUENCE-EVIDENCE.

In a suit to set aside various gifts on the ground of fraud and undue influence, evidence held insufficient to sustain some of the causes of action, and sufficient to sustain others.

[Ed. Note.-For other cases, see Gifts, Cent. Dig. §§ 95-100; Dec. Dig. § 49.*]

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 11. GIFTS (§ 38*) -FRAUD AND UNDUE INFLUENCE-EVIDENCE.

The fact that the donee was the nurse of the donor during the latter's last illness when he transferred stock to her is not in and of itself sufficient to sustain an inference of fraud and undue influence.

[Ed. Note.-For other cases, see Gifts, Cent. Dig. § 74; Dec. Dig. § 38.*]

Action by Robert C. Watson, executor of Morton W. Rundel, against Elizabeth A. Holmes. Judgment for plaintiff as to a part of the causes of action.

Asher P. Whipple, of Rochester (John Desmond and John M. Stull, both of Rochester, of counsel), for plaintiff.

Smith, De Graff, Castleman & Mosher, of Rochester (John A. Barhite, of Rochester, of counsel), for defendant.

CLARK, J. This action is brought by the plaintiff, as executor of the will of Morton W. Rundel, deceased, to set aside certain transfers of personal property made by said Rundel in his lifetime to defendant, Elizabeth A. Holmes, on the ground that such transfers, which defendants alleges were gifts, were procured by fraud and undue influence.

Morton W. Rundel was a bachelor and had for many years conducted an art store in the city of Rochester, where he died on the 5th day of November, 1911, aged 73 years. He was not in active business at the time of his death, having retired in 1904. Mr. Rundel left a will dated August 11, 1910, in which this plaintiff was named as executor, and there was a codicil to that will dated April 17, 1911, and after Rundel's death the will and codicil were admitted to probate in the Surrogate's Court of Monroe County. By the terms of the will, after making liberal provision for his sister, who was his nearest relative, and also remembering certain collateral relatives, he devised the residuum of his estate to the city of Rochester for the purpose of establishing a memorial art gallery, but no particular amount was named for that purpose. By the codicil to his will he increased to a certain extent his gifts to collateral relatives and changed the legacy to his sister from the income on $100,000, which was provided for in the will, to a legacy providing that she be paid $3,600 a year, in equal monthly payments of $300 each, secured by 150 shares of Eastman Kodak Company stock, left in trust during the life of his sister.

The defendant and Mr. Rundel had been acquaintances for many years, and they were both Spiritualists, and it is claimed he believed that acting through defendant as a medium he could get reliable information from spirits, both in reference to his health, medical treatment, and business affairs.

In the latter part of July, 1910, Mr. Rundel went to Atlantic City, N. J., intending to spend some little time at that resort. It had been his custom to go to Atlantic City occasionally for rest and recreation. At the time he went in July, 1910, his health was not robust, but he was not by any means in a serious condition, he being up and around and able to attend to his ordinary affairs. Before he went to Atlantic City he had invited defendant and her widowed daughter to go there as his guests, but they did not accompany him. A few days after Mr. Rundel arrived at Atlantic City defendant and her daughter, Mrs. Sawyer, went there in pursuance of his invitation to visit him, and when they arrived, although he met them at the station in a carriage, they found that he was seriously ill; he having been stricken with a heart difficulty on his journey from Rochester to Atlantic City a few days previously. Defendant was a practical nurse, a widow over 60 years of age, and had followed the business of nursing to a certain extent at Rochester for many years. On her arrival at Atlantic City and finding Mr. Rundel out of health, at his request she at once undertook to care for him, and continued to do so until about the 7th of August, 1910, when she and her daughter returned with him to Rochester. They traveled in the night, he being critically ill at all times during the journey, and defendant stayed up all night and nursed and cared for him. They arrived in Rochester the next morning and went immediately to Mr. Rundel's boarding place at 57 South Clinton street, where he had lived and had rooms for many years. Before arriving in Rochester from Atlantic City, and when they reached Canandaigua, defendant telegraphed or telephoned ahead for a physician to be present and attend Mr. Rundel on their arrival at his boarding place.

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

The first night after he arrived there defendant did not stay with Mr. Rundel, but left him in the care of his landlady; defendant going to her own residence in Rochester. The next time she saw him, which was the next day, Mr. Rundel had not improved, and he requested defendant to remain and care for him, which she did, giving him excellent care and attention from that time continuously and without interruption until the time of his death. Her attention and care of Mr. Rundel was constant, she being with him practically all the time night and day, she alone ministering to his every want. Mr. Rundel remained in his rooms on South Clinton street from about August 8, 1910, until early in March, 1911, when he moved to a house at No. 732 East Main street, in the city of Rochester, which property was purchased and the title taken in the name of defendant, although it was largely paid for by moneys originally furnished by Mr. Rundel.

Mr. Rundel and defendant had not only been acquaintances, but had been close personal friends for many years previously to 1910, and he had shown his regard for and interest in her by giving her various articles of personal property, notably 50 shares of the common stock of the Eastman Kodak Company May 11, 1908, 30 shares of the common stock of the same company October 7, 1909, and 95 shares of the common stock of the same company February 3, 1910. These gifts, being 175 shares of the common stock of the Eastman Kodak Company, were all made previous to Mr. Rundel's last illness, which came upon him the last days of July, 1910, and at times when he was in his usual mental and physical vigor and these gifts are in no way questioned or attacked in this litigation.

When Mr. Rundel came back from Atlantic City on or about the 8th of August, 1910, he was still the owner of a very large amount of personal property, aggregating in value about $572,000. He owned 1,415 shares of the common stock of the Eastman Kodak Company,

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