¶1At the close of the plaintiffs’ case the defendant submitted the cause on the plaintiffs’ evidence. The court made findings of fact, and of law. The case is, therefore, not that of a nonsuit, and it is not a question whether there was any evidence to support the plaintiffs’ claim, but whether the decision of the trial court on the facts and law was erroneous.
¶2The contest is the not unusual one between the personal representatives of a deceased depositor and the beneficiary over funds represented by saving banks books, the deposits being made by plaintiffs’ testator in his name, in trust for the defendant. That such a deposit, even when the bank books are retained, in the absence of attendant circumstances indicating a contrary intent, creates a trust in favor of the beneficiary, is settled by authority. (Martin v. Funk, 75 N. Y. 134; Willis v. Smyth, 91 id. 297; Mabie v. Bailey, 95 id. 206, 207.)
¶3The decision in Cunningham v. Davenport (147 N. Y. 43, 48) has *263no application to this controversy, for the beneficiary here has survived the depositor.
¶4In tliis case the attendant acts of the deceased would seem conclusive of his intention to create a trust hi favor of the defendant. The deposits were made in April, 1893. The plaintiffs put in evidence a letter of the deceased to defendant, found among the former’s papers after his death, directing what disposition she should make of the moneys. In July, 1894, $2,000 was drawn by the defendant from one account and given to the defendant. There is no evidence that it was given to her as a loan, or that she promised to repay it. The mere payment of money is not evidence of a loan; the presumption is that it was given in satisfaction of an antecedent debt. (1 Phillips on Evidence [Cowen & Hill’s ed.] 675.) So in this case it was a recognition of defendant’s title to the money. The fact that the depositor drew the interest during his life is not inconsistent with an intention to create a trust. (Willis v. Smyth, supra.)
¶5I do not know that the appellants seriously deny that the deceased intended the moneys should go to the defendant. Their mam contention is that the depositor intended to reserve the interest during his life, and that the money was to go to the defendant only on his death, and that either of these facts would render the attempt to create a trust void. The trial court refused to find either fact in favor of the plaintiffs, but had the facts been found, in my opinion, they would not have affected the result.
¶6It must first be observed that the case presented is one of a trust, not of a gift. The distinction between the two cases is clearly pointed out by Judge Andrews in Beaver v. Beaver (117 N. Y. 421). It is, therefore, not subject to the difficulty that exists in making gifts where the donor retains any possession or interest in the subject-matter of the gift. (Young v. Young, 80 N. Y. 422, 438.) I can see no reason why the deposit might not have been made by the deceased with the qualification expressed on the face of the pass book, that the interest was payable to him personally during life, nor why such a deposit would not have been valid and effectual.
¶7Nor if it were the fact that the nroney "was to go to the defendant only on the depositor’s death would that render the transaction a testamentary disposition. It is sufficient that the defendant’s interest was vested at the time of the deposit. (Van Cott v. Prentice, 104 *264N. Y. 55.) If as a condition for this deposit the defendant promised to pay any sums to others, such, parties must seek their own remedies against her. It does not affect her rights to the fund.
¶8The judgment appealed from should be affirmed, with costs.
¶9All concurred, except Brown, P. J., not sitting.
¶10Judgment affirmed, with costs.