Opinion
No. 38/724.
03-13-1916
FIOCOHI v. SMITH.
Treacy & Milton, of Jersey City, for complainant. William J. Kearns, of Newark, for defendant.
Bill by Mary Ferretti Fiocchi against Charles I. Smith, administrator. Decree for complainant.
Treacy & Milton, of Jersey City, for complainant. William J. Kearns, of Newark, for defendant.
STEVENS, V. C. This is a suit to determine who is entitled to the money due from three New York Savings Banks, viz., the Bowery Savings Bank, the Metropolitan Savings Bank, and the Irving Savings Institution. The Bowery Savings Bank account was opened by Nicholas Ferretti in the year 1899 in his name, "in trust for Mary Ferretti, sister." The Metropolitan Savings Bank account was opened by him in the name "Rev. Nicholas Ferretti, in trust for Mary Ferretti." Both of these accounts were opened while he was a resident of New York. The Irving Savings Institution account stood originally in the name "Nicholas Ferretti," but was in 1911, and after he had become a resident of Elizabeth, N. J., transferred to the name "Nicholas Ferretti in trust for Mary Ferretti, sister." In the absence of any evidence on the subject, it must be assumed that the contracts were made in New York, and that the sister, Mary Ferretti, was not notified that she had been made cestui que trust of the deposits. The relation of depositor to the corporation is that of creditor to its debtor. Said Chief Justice Beasley in Chester v. Halliard, 36 N. J. Eq. 314:
"The depositors [of a savings bank] are but creditors of the corporation and the moneys in question are not their moneys." Smith v. Chosen Freeholders of Essex, 48 N. J. Eq. 627, 23 Atl. 268.
The contracts were entered into and were to be performed in New York. It is elementary that:
"If the contract refers to personal property the place of the contract governs, by its law, the construction and effect of the contract." Parson's Mer. Law, 319; Armour v. Michael, 36 N. J. Law, 62; Lane v. Watson, 51 N. J. Law, 186, 17 Atl. 117; Oliphant v. Vannest, 58 N. J. Law, 162, 33 Atl. 382.
In Nicklas v. Parker, 69 N. J. Eq. 743, 6l Atl. 267, affirmed on appeal, 1 Buch. 777, 61 Atl. 267, 71 Atl. 1135, 14 Ann. Cas. 921, it was held that a savings bank deposit made by one as trustee for another, did not, of itself, constitute a gift or create a trust valid as against the intestate's administrator. In the case In re Totten, 179 N. Y. 112, 71 N. E. 748, 70 L. R, A. 711, 1 Ann. Cas. 900, the New York Court of Appeals held the contrary. Mr. Justice Vann 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."
The case in hand comes directly within the authority of this case, and no subsequent case has been cited which in any wise modifies it. The fact that the deposit was made in the Irving Savings Institution after the intestate became a resident of Elizabeth makes no difference, for as far as appears, the contract was made and was to be performed in New York.