majority">Patterson, J.:

The defendant .appeals from a judgment entered upon the report-of a referee in favor of the plaintiff in an action brought to recover an amount on deposit in a savings bank in an account opened by one Bridget Steggels “in trust for John T. Scallan.” The contest is between Scallan and Brooks, the executor of the last will and testament of Bridget Steggels. The real question in. the case relates to-the ownership of this money on deposit. Does it belong to the= plaintiff or is it assets of the estate of Mrs. Steggles passing to her executor ?

From the evidence it is quite clear that Mrs. Steggels opened, the account with the savings bank and personally received the pass book, which she retained in her possession until the day before liei" *249death, when she handed it to the person named as executor in her will. From the form in which the account was opened by Mrs. Steggels and- the fact of her acceptance of the pass book with the nature of the account and of the deposit stated in it and from the evidence of two witnesses of statements and declarations made by Mrs. Steggels, that she constituted the trust for the benefit of the plaintiff, the referee was authorized to find, as he did, that a trust for the plaintiff was created.

The devotion of the money to a trust for the benefit of Scallan must be deemed under the authorities cited in Farleigh v. Cadman (159 N. Y. 169) and in Williams v. Brooklyn Savings Bank (51 App. Div. 332) to constitute an irrevocable trust. The retention of the pass book by Mrs. Steggels can only be regarded as the possession by a trustee of a muniment of title. If the deposit in trust is to be regarded as a gift, no question can arise of incompleteness of that gift by reason of the non-delivery of the subject of it to the donee, for the trust existing, possession and title necessarily would be in the trustee. There is no question of revocation of the trust by will or otherwise.

The judgment appealed from should- be affirmed, with costs.

Van Brunt, P. J., Rumsey, O’Brien and McLaughlin, JJ., concurred.

Judgment affirmed, with costs.

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