the gift in his lifetime by some unequivocal act or declaration, such as delivery of the pass-book or notice to the beneficiary," Mr. Justice HOOKER, for the court, says: "Standing alone, the mere deposit of her money in her name, as trustee for him, did not establish, under the rule in the Totten case, an irrevocable trust; but the finding of the pass-book in the safe deposit vault of the beneficiary necessarily implies that there was notice by the depositor of the trust to the beneficiary. Inasmuch as notice to the beneficiary is one of the examples of an unequivocal act or declaration by which the depositor completes the gift, used by the Court of Appeals to illustrate the rule, we must hold that the notice to William H. Davis (the beneficiary), completed his wife's gift to him and rendered the trust irrevocable."

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Obviously, it was considered by Mr. Justice HoOKER that the delivery of the pass-book was not only the "delivery" which the Court of Appeals, in the Totten case, instanced as one of the unequivocal acts" by which the gift could be completed, but that delivery, if it were made to the beneficiary personally, would also embrace and constitute the "notice " which the Court of Appeals contemplated as the "declaration" by which the completion of the gift might be made to appear.

In Stockert v. Dry Dock Savings Institution (155 App. Div. 123) the depositor took a pass-book from a savings bank in her name in trust for her niece named, and delivered the same to the beneficiary at the time of the deposit.

Mr. Justice SCOTT, writing for the Appellate Division of the first department, says: "The only evidence as to the intention of the depositor at the time the deposit was made is that she at once gave the bank-book to plaintiff. That evidence, standing alone and unqualified, fixed the character of the trust as an irrevocable one under the rule in the Totten case."

The case last cited is controlling, unless the conclusion which follows from a delivery by the depositor at the time of deposit is to be held to be different from the conclusion to be derived from

a delivery made at some time not known or at a time after the deposit. Whether delivery be made at the time of the deposit, or later, the trust in each case is capable equally of revocation or execution at the moment of delivery, and the act which in one instance would change a tentative purpose to a fixed purpose would apparently have the same effect in the other instance.

If the case at bar be regarded as one where the time of delivery is unknown, it is in precise parallel with the facts of the Davis case (supra) where all that was known of the delivery was that the subject thereof was found in the possession of the beneficiary at the time of his death.

In Matter of Farrell (N. Y. L. J., Jan. 13, 1912) also reported in Christie on Inheritance Taxation (p. 797) the delivery of the bank-books was made some years after the deposits, and the report of the case does not disclose any evidence other than the fact of delivery tending to show the intention of the Mr. Surrogate FOWLER says: "The deposit by the decedent of his own money in trust for his children constituted a revocable trust until some unequivocal act on his part showed that he desired the gift to become absolute. The unequivocal act was the delivery of the bank-books to the cestuis que trustent," citing Matter of Totten (179 N. Y. 112).

act.

In Matter of Reed (89 Misc. Rep. 632) Mr. Surrogate OSTRANDER, in determining whether transfer tax was to be imposed, says: "The deposit made in trust for Fred S. Clute by the deceased seems to fall within the rule of Matter of Totten (179 N. Y. 112); Matter of Pierce (132 App. Div. 469); Stockert v. Dry Dock Saving Institution (155 id. 123); Hessen v. McKinley (Id. 496), where it was held that when notice of the trust form of the deposit was given to the beneficiary the trust became irrevocable. The transaction amounted to a gift inter vivos, the title passed at the time and the deposit was not taxable."

While the record of the case last cited does not disclose the

nature of the notice which was given of the form of the deposit, there can be no conceivable notice of the trust form of a deposit stronger than that which is contained in the delivery to the beneficiary of the book which is itself the express form of the deposit.

These cases have been treated in detail, for they seem to be out of line with Matter of Halligan (82 Misc. Rep. 30) with which authority the court would be loath to disagree, except upon studious consideration of appellate decisions to the contrary.

The appeal is sustained, and the order must be modified accordingly.

Order modified.

Matter of the Estate of RAFFAELE BALDASARRO, Deceased.

(Surrogate's Court, Jefferson County, December, 1915.)

EXECUTORS AND ADMINISTRATORS-APPLICATION BY COUNTY TREASURER FOR REVOCATION OF LETTERS OF ADMINISTRATION-CODE CIV. PRO., § 2570.

Where letters of administration upon the estate of a resident alien and subject of the kingdom of Italy were issued to the proper consular agent, and the estate, which is small, is ready for final distribution, the surrogate under section 2570 of the Code of Civil Procedure may in his discretion refuse to entertain an application made by the county treasurer for the revocation of the letters of administration, and by reason of the treaty between this country and Italy it will be decreed that the fund be paid to the consul general of Italy residing at the city of New York who appeared in behalf of the next of kin of decedent.

PROCEEDINGS upon application for the revocation of letters of administration.

Gilbert S. Woolworth, for petitioners.

Du Bois & McDermott, for administrator.

ATWELL, S.- The deceased above named, who met with accidental death on the 3d day of May, 1914, was a resident alien, a subject of the kingdom of Italy.

On the 19th of May, 1914, letters of administration upon his estate were issued by this court to Germano P. Baccelli, consular agent for the kingdom of Italy, residing at Albany, N. Y.

Since such letters were issued, the administrator has collected $810.08, of which $750 was recovered in settlement of a cause of action for negligently causing the death of the deceased against one Millard. The administrator also recovered judg ment for $750 against one Weeks for the same cause; that said Weeks has since died and has left no estate and the said judg ment remains uncollected and uncollectible. In August, 1915, the administrator filed his final account showing the above facts, and that he has paid the funeral expenses of deceased and counsel fees and other expenses and has on hand for distribution the sum of $457.56, subject to commissions and expenses of accounting.

This fund should be distributed among the next of kin of the deceased, who are his mother and four sisters residing at Apise, province of Benevento, Italy. G. Fara Forni, consul general of the kingdom of Italy, residing in New York city, has appeared in behalf of the next of kin and claims that the fund should be paid to him by reason of the provisions of the treaty between this country and Italy. This right has been recognized in the Surrogates' Courts of this state. (Matter of Tartaglio, 12 Misc. Rep. 245; Matter of Davenport, 43 id. 573.)

I am inclined to follow these decisions and grant the decree asked for unless the letters issued must be revoked by reason of a recent application therefor.

On the 30th day of November, 1915, the county treasurer of Jefferson county presented his petition claiming that he has a prior right to letters of administration upon this estate and demanding that the letters issued herein May 19, 1914, to Ger

mano P. Baccelli be revoked and that new letters be issued to himself.

This application is made under the provisions of section 2569 as I understand it, and, by the provisions of section 2570, the surrogate may, in his discretion, refuse to entertain the proceeding and refuse to issue a citation.

I cannot see how any good can be accomplished by revoking these letters and issuing new letters; the estate is ready for decree of final distribution. The petition presented does not state any new facts or show that any other assets have been or are likely to be discovered, or allege any good reason why, at this late stage, a change in administrators should be made. Such change would involve more and unnecessary expense. amount left for distribution is small and should not be subjected to any further expense. I, therefore, think it would be a proper exercise of discretion to decline to entertain the proceeding, and to do otherwise would work an injustice upon the next of kin. The application for a citation is, therefore, refused.

The

Since preparing this memorandum one Marco Paragent, claiming to be a cousin of the deceased, has presented a similar petition through the same attorney who presented the county treasurer's petition asking for the revocation of the letters issued to the Italian consular agent and the issuance of letters to the county treasurer. This petition the surrogate also declines to entertain for the reasons above stated.

Decreed accordingly.