Opinion by Miller, J. All concur, except Danforth and Finch, JJ., dissenting. GIFT. TRUST. N. Y. COURT OF APPEALS. the deposits for the children were Mabie, respt., v. Bailey, exr., and plaintiff's mother on several applt. Decided Feb. 26, 1884. Defendant's testator deposited certain money in bank to his credit in trust for plaintiff, and informed her mother of the fact. He afterwards withdrew this deposit and others of like nature and deposited the whole in another bank to his credit as trustee, where it remained until his death. subsequent occasions, in which the provision made for the family was recognized, and no change of intention on his part was indicated. On July 8, 1867, B. drew out the amount standing to the credit of plaintiff as well as to the credit of the other accounts, and on the same This was done without plaintiff's knowl- day deposited to his credit $3,000 edge. Held, That the fact that he withdrew the deposit was not legitimate evidence that he did not intend, when the deposit was made, to create a beneficial trust for plaintiff; that no power of revocation having been reserved, the trust was irrevocable and that the right of action in favor of plaintiff did not accrue until testator's death. Affirming S. C., 16 W. Dig., 557. This action was brought to recover 475.22, alleged to have been received by B., defendant's testator, on July 8, 1867, as trustee for the plaintiff. It appeared that B. deposited large sums in a savings bank to the credit of various accounts. On July 30, 1864, he deposited $400 to his credit in trust for plaintiff. The fact of having made this deposit he communicated to plaintiff's mother, exhibiting to her the pass-book representing the deposit, and also other pass books containing entries of similar deposits in favor of herself, her husband and her other children, and, without stating the amount of the several deposits, informed her that as trustee. He also opened at the same bank other accounts, in which he made deposits at or about the same time. In these books the word trustee followed the name of B., and seemed to have been inserted after the accounts were opened. B. never communicated to plaintiff the fact that he had withdrawn the money from the savings bank, and she had no knowledge of the fact until after his death on July 5, 1879. Plaintiff came of age April 4, 1878. This action was commenced November 3, 1881. The court refused to submit the case to the jury and directed a verdict for plaintiff. W. F. Cogswell, for applt. Held, No error; that there was no legitimate evidence to rebut the prima facie inference from the deposit in the form in which it was made, considered in connection with the other affirmative evidence of the intention of the testator. The trust once established, no power of revocation having been reserved, was irrevocable. 40 Conn., 512; 75 N. Y., 134. It seems, That the mere fact of the deposit alone, while presumptive, is not conclusive evidence of an intent to create a trust so as to preclude evidence of contemporaneous facts and circumstances constituting res gesta to show that the real motive of the depositor was not to create a trust, but to accomplish some independent different purpose inconsistent with an intention to divest the depositor of the beneficial ownership of the fund. Also held, That the fact that the deposits for plaintiff and others were in 1867 drawn out by B. is not legitimate evidence that he did not intend when the deposits were made to create a beneficial trust for the beneficiaries named. It was competent for B. to withdraw the deposit made for plaintiff to make another investment or for any purpose not inconsistent with the trust. 84 N. Y., 83. The right of action did not accrue until B.'s death, which was presumptively the period when the trust terminated. WILLS. TRUSTEES. N. Y. COURT OF APPEALS. Cook, by guardian, plff. v. Lowry, deft. Decided Feb. 26, 1884. A trust was created by will of a portion of testator's estate during his daughter's life, with direction to pay the income of a part thereof to the daughter and invest the balance, the whole to be paid to her issue on her death. Held, That the direction as to accumulations was void; that § 40, 1 R. S., 726, is a rule of limitation within 1 R. S., 773, § 2, and that the accumulations belong to the issue of said daughter. Where a trustee kept no account of the fund, used the securities in his own business and realized profits thereon of which rendered no account, Held, That he was properly charged with legal interest. In a case of gross neglect or unfaithfulness the court may properly disallow commissions to a trustee. Modifying S. C., 16 W. Dig., 408. By the ninth clause of the will of L., the testator created a trust estate in his executors of one-fourth of the residue of his real and personal property during the life of his infant daughter G., with direction to invest the income during her life, except that he directed the income of $25,000 thereof to be paid to G. semi-annually during her life and on her death said portion to go to her issue, and in default of issue to the testator's sons W. and A., their heirs, executors and administrators, in equal proportions. The testator died in All 1852. At that time G. was fourIn 1855 she marteen years old. ried one C., and plaintiff, her sole issue, was born March 25, 1857. G. is still living. In 1865 the ex Interest was properly allowed. Judgment of General Term, affirming judgment on verdict directed for plaintiff, affirmed. Opinion by Andrews, J. concur. ecutors rendered a final account and the surrogate, on March 23, | of an expectant estate, there shall 1866, decreed that the amount then be a suspense of the power of remaining of the share of the testa- alienation or of the ownership, tor's estate, under the ninth clause, during which the rents and profits was $48,258.83, which the decree shall be undisposed of, and no vadeclares is invested for G. and her lid direction for their accumulation heirs. On May 22, 1866, defendant is given, such rents and profits L. was, by order of the Supreme shall belong to the person presumCourt, appointed trustee of the ably entitled to the next eventual funds and property of the estate in estate" is a rule of limitation the hands of the executors, amount- within section 2 of the title relating ing in all to $51,567.23, including to the accumulations of personal said $48,258.83. The order di- property, 1 R. S., 773, § 2, and the rected that when the trustee had accumulations would therefore bequalified as directed he should be long to the plaintiff. 2 Barb. Ch., entitled to receive from the execu- 506; 3 id., 76; 15 N. Y., 322; 24 tors said funds and property and id., 19; 43 id., 384; 92 id., 502; after paying over the same they 18 W. Dig., 478; 31 N. Y., 9; 70 should be discharged from further id., 270; 86 id., 523; 92 id., 295. liability. On December 14, 1866, the executors transferred to the trustees assets and securities of the nominal value of $51,567.33, of which, by the decree of the surrogate, $3,428.50 was to be invested to pay annuities given by the will, and $48,138.83 represented the share in the ninth clause, By the judgment herein it is determined that the income or accumulations the trustees should have received over and above the annual income on $25,000 paid by him to G., and sums expended for the support of plaintiff amounted in the aggregate on August 23, 1879, to $15,766.87. It is conceded that the direction of the will as to accumulations is void. Richard P. Marvin, for plff. William F. Cogswell, for deft. Held, That § 40, 1 R. S., 726, which declares that "when, in consequence of a valid limitation Vail v. Vail, 4 Paige, 317; Hull v. Hull, 24 N. Y., 647, distinguished. The defendant kept no account of the trust fund or of the income. He used the securities in his own business, changing them from time to time and realizing profits therefrom, of which he rendered no account. His account in this action was surcharged with items of expenditure, many of which were rejected as unsupported by evidence and some of which were shown to be unfounded in fact. The trustee was charged with interest on the fund in his hands at the rate of seven per cent. per annum. Held, That under the circumstances it was not error in law to charge the trustee with the legal interest as the equivalent of undisclosed profits and by way of indemnity for his unfaithfulness in his trust. 11 Ves., 92; 16 How., U. S., 535; 2 Kent's Com., 230; and note. Also held, That commissions were properly refused to the defendant. Commissions are allowed to trus tees as a compensation for services in the execution of the trust, and in a case of gross neglect or of unfaithfulness the court may' properly disallow them. 3 Redf. on 3 Redf. on Wills, 554. At no time when a trustee makes payments for maintenance with income in hand, not bearing interest, should he be allowed interest on such payments. 40 N. Y., 76. Judgment of General Term, affirming as modified judgment of Special Term, modified and as modified affirmed. Notice of appeal was seasonably served, on March 10, 1880, upon the justice and also on respondent's attorney who appeared before the justice, she being a nonresident. The notice served on the justice was not signed by appellant or his attorney, but was indorsed with the name of appellant's attorney. An undertaking was filed and the justice made return. On March 20, 1882, the County Court, on motion of plaintiff, granted an order dismissing the appeal with costs of motion, and on March 31, 1883, amended said. order by adding thereto "Ordered that the application of appellant for said amendment be denied on Opinion by Andrews, J. All the ground that under the Code concur. COUNTY COURT. APPEAL. N. Y. SUPREME COURT. GENERAL Althea Horr, respt., v. Leonard Decided Oct., 1883. Under the law as it stood in March, 1880, a notice of appeal to the County Court from a justice's judgment not subscribed, but endorsed with the name of an attorney, was good. The County Court has power to allow an amendment of a notice of appeal. Appeal from order of County Court, dismissing an appeal brought by defendant from a justice's judgment and from order amending said order by denying motion to amend the notice of appeal. as it existed at the time the appeal Hannibal Smith, for applt. Held, That, as the order was made in 1882 and amended in 1883 and affected a substantial right, it was appealable. Chap. 135, Laws of 1881, amending § 1342, Code Civ. Pro. Andrews v. Lang, 79 N. Y., 573, distinguished. That the County Court erred when it held that the notice of appeal was fatally defective and did not operate to remove the cause from the justice's court. When the appeal was taken in March, 1880, §§ 352 and 353 of the Code of Procedure were in force. Under § 353 it has been held that a notice of appeal signed by an attorney is good, and also that "the signature upon the back of the notice and not at the end of it" is good. 2 Hun, 550; 28 id., 498. There was no statute requiring an actual subscription of the notice of appeal "either by the appellant or by his attorney in the appellate court" until the amendment of § 3046, adopted July 1, 1882, Laws 1882. Chap. 399; 28 Hun, 498. That while it may be true that the court could not exercise power to grant an amendment of a notice of appeal under § 327 of the old Code, which had been repealed, it possessed power to grant amendments when the motion was made and submitted to it in 1882. See Code Civ. Pro., $$ 722, 723, 724, 3049; 28 Hun, 498. From the papers it is evident that defendant supposed in good faith that good cause existed for an appeal, and that his attorney in good faith attempted to perfect an appeal to the County Court, when a new trial would be had of the issues of fact, but that through the slips and mistakes of the attorney the proceedings in regard to the appeal had some minor irregularities which did not prejudice plaintiff or materially affect his substantial rights, and that defendant ought not to be deprived of an opportunity to present his case upon the merits to the County Court for adjudication. 28 Hun, 498. Where a gift to a charitable use is so indefinite as to be incapable of being executed by a judicial decree it must fail. Testator bequeathed certain personal property to his executors in trust to distribute and apply the same to such charitable and educational uses as should be specified in a codicil to be thereafter made, and directed that if no codicil should be executed then on trust to distribute among such institutions incorporated under the laws of New York or Maryland, having authority to receive and hold funds for such uses, as the executors should elect. No codicil was made. Held, That the provision made was void by reason of indefiniteness and uncertainty in failing to designate any institutution or class of institutions which were to be the recipients of the bequest. Reversing S. C., 16 W. Dig., 419. * * This action was brought for the construction of the tenth clause of the will of T. By said clause the testator gave and bequeathed to his executors or the survivors of them "bonds and stocks amounting at their par value to the sum of $150,000, * in and upon the trust that they shall distribute and apply the same to such charitable and educational uses, and in such manner as shall be specified and directed in a codicil to this my will," which codicil the testator declared he was not then pre Orders reversed, with costs, &c., pared to make, but which he inof one appeal. Opinion by Hardin, J.; Smith, P. J., and Barker, J., concur. tended to make without unnecessary delay. And in case the codicil should not be executed "then upon trust to distribute the said |