them. In the petition of the committee in Mental Health No. 514-54 for authorization to institute this action to determine the validity of the trusts he sets forth the tax of certain writings signed by Mrs. Hayes and found in the passbooks for accounts Nos. 113-735 and 113-736. These writings indicate the number of the individual account of Mrs. Hayes from which she withdrew the money deposited in trust accounts Nos. 113-735 and 113-736, and that the money so deposited was 'deposited to credit of' the named grandniece 'with Eula K. Hayes as trustee.'
The passbooks of the trust accounts were retained by Mrs. Hayes, and are presently in the possession of her committee. Apart from the payment of certain accrued dividends directly to the trustee as explained previously herein, Mrs. Hayes since creating the trusts has neither increased nor decreased the funds in them. The record does not show that she ever manifested any intention to alter the status of the trust accounts.
The plaintiff committee contends that the trusts are incomplete and inadequate, violate the rule against perpetuities and constitute attempted testamentary dispositions. He seeks to have the trusts declared invalid and that the monies therein are part of the estate of his ward. If the trusts are upheld, however, the plaintiff prays for the appointment of a substitute trustee. The guardian ad litem maintains that the trusts should be sustained. The position of the defendant, First Federal Savings and Loan Association, is that the cards filled out by Mrs. Hayes when the trust accounts were opened there give an interest to each beneficiary in praesenti. The defendant, Perpetual Building Association, is of the view that the establishment of the accounts constituted no more than a revocable promise, that the plaintiff committee could revoke any promise implied in opening the accounts, merely by withdrawing from the accounts or closing them completely, and that alternatively, if he deemed it in the best interests of his ward he could use all or a part of the funds for the education of the infant defendants.
When a person makes a savings deposit in a bank in his own name as trustee for another person, his intention may be either (1) to create a revocable trust (2) to create an irrevocable trust (3) not to create a trust. Restatement of Trusts, Sec. 58, Comment (a); Scott on Trusts, Sec. 58; Bogart, Trusts and Trustees, Sec. 47. It is the opinion of the court that Mrs. Hayes made the deposits here involved with the intent of originating trusts, and that valid revocable trusts were in fact created. Each deposit created a tentative trust in favor of the named beneficiary revocable at will by the depositor. In re Totten, 179 N.Y. 112, 71 N.E. 748, 70 L.R.A. 711; Imperatrice v. Imperatrice, 298 N.Y. 549, 81 N.E.2d 95; In re Krewson's Estate, 154 Pa.Super. 509, 36 A.2d 250; Rickel v. Peck, 211 Minn. 576, 2 N.W.2d 140, 138, A.L.R. 1375, annotation beginning at page 1383.
Being now incompetent, Mrs. Hayes is unable to exercise her right to revoke the trusts. In such a situation the committee of the incompetent may apply to the court for permission to revoke the trust and the court will grant such permission if, but only if and to the extent that, the use of the deposit is necessary for the welfare of the depositor. The court acts for the incompetent as it deems she would act if competent. Restatement of Trusts, Sec. 58, Comment (b) as amended 1948; Chase National Bank of City of New York v. Ginnel, Sup., 50 N.Y.S.2d 345, 347; Ganley v. Lincoln Savings Bank of Brooklyn, 257 App.Div. 509, 13 N.Y.S.2d 571.
No showing has been made in this case that the incompetent is in need of the funds in the trusts here involved. She is in St Elizabeths Hospital at a cost of $ 5.24 per day. The yield from her annuity policies of insurance is almost enough to meet that expense. In addition her estate exclusive of the money in the trusts amounts to about $ 35,000. It does not appear that she has any unpaid debts or expenses other than those incident to the administration of her estate and this litigation.
The court does not believe that Mrs. Hayes, if she were competent, would at this time revoke the trusts, or any of them having regard for her interest in her minor grandnieces, her advanced age and the adequacy of her estate to meet all her foreseeable needs.
Plaintiff's motion seeking to have the trust accounts transferred to him will be denied. Judgment will be entered herein declaring that the said trusts are valid revocable trusts, and a substitute trustee will be appointed. Such action will be without prejudice to the right of the committee, or of the beneficiaries, if circumstances warrant, to make application to the court for use of the trust funds.
Counsel will please submit a proposed judgment.