and it was held that none would be implied from a deposit by one person in the name of another, and that no gift was established. In Cunningham v. Davenport, 147 N. Y. 43, 41 N. E. 412, 32 L. R. A. 373, 49 Am. St. Rep. 641, where it was held that no trust was established, plaintiff made a deposit in trust for his brother. The latter died without having been informed of the account, and the depositor was alive, denying the trust. Practically the same state of affairs existed in Haux v. Institution, 2 App. Div. 165, 37 N. Y. Supp. 917. The doctrine of the court of appeals, as stated in Cunningham v. Davenport (at page 47, 147 N. Y., page 413, 41 N. E., 32 L. R. A. 373, 49 Am. St. Rep. 641), is that the act of a depositor in opening an account in the savings bank in trust for a third party, the depositor retaining possession of the bank book, and failing to notify the beneficiary, creates a trust if the depositor dies before the beneficiary, leaving the trust account open and unexplained. If the intent can be strengthened by acts and declarations of the depositor in his lifetime amounting to publication of his intent, a more satisfactory case is made out; but it is not absolutely essential, in the absence of explanation, where he dies leaving the trust account existing. In Washington v. Bank, 171 N. Y. 166, 63 N. E. 831, the supposed beneficiaries were found by the jury to be fictitious, and no new principle was enunciated on the appeal. In Re Mueller, 15 App. Div. 66, 44 N. Y. Supp. 280, there was proof showing the intention of the depositor not to devest himself of title. In Decker v. Institution, 15 App. Div. 553, 44 N. Y. Supp. 521, one Dubois made a deposit in trust for his sister, and subsequently stated that he had given plaintiff four thousand and odd dollars, and said she knew of it. The court held that it was clearly his original intention to establish a trust, and, notwithstanding an entire change of circumstances, the trust was upheld. In Williams v. Bank, 51 App. Div. 332, 64 N. Y. Supp. 1021, it was held that the opening of an account by one person in trust for another establishes prima facie an intention to create a trust, and that the retention of the pass book by the trustee, his failure to notify the beneficiary, and a withdrawal are not sufficient to establish a contrary intention. In this case there was no independent declaration of the depositor, but the account was simply open and unexplained at his death, and the court held that the trust was established from the original evidence of intention and proof of circumstances. In Robertson v. McCarty, 54 App. Div. 103, 66 N. Y. Supp. 327, it was held that a deposit in trust for depositor's brother, although the latter did not become aware of its existence until after the death of the depositor who had retained possession of the pass book, created an irrevocable trust; and, where it had been withdrawn by the depositor, and converted to his own use in his lifetime, it could be recovered from his legal representatives. The fund was established by one deposit of $3,000, and was wholly withdrawn. The same principles are upheld in Scallan v. Brooks, 54. App. Div. 248, 66 N. Y. Supp. 591, and Harrison v. Totten, 53 App. Div. 178, 65 N. Y. Supp. 725. In Meislahn v. Meislahn, 56 App. Div. 566, 67 N. Y. Supp. 480, a father deposited money in trust for his daughters, having ten deposits for one daughter, aggregating $26,000, and 114 New York State Reporter and stated that he had money in trust for the girls. He also said, in substance, that they could not get it until after his death. The funds were composed of numerous deposits, and the depositor drew the interest. The situation was nearest to the one in the case at bar that I have found. The court there held that a trust was established. In the most recent case-In re Totten, 38 Misc. Rep. 349, 77 N. Y. Supp. 928-there was no declaration of the depositor, as in the case at bar, and, while the circumstances proven in that case may justify it, the decision does not follow the line of cases in which Robertson: v. McCarty, supra, is included. The case at bar belongs in the class where the trust has been upheld, and the executrix is not, therefore, chargeable with the amount of the deposit in question. As to the next question involved it appears that Catharine Werner, as executrix of Valentine Werner, paid to Katie Biggars $500 from the funds of the estate of Valentine Werner, which my predecessor has decided was unauthorized, and, when Katie Biggars rendered her account as administratrix with the will annexed of Valentine Werner, she was charged with that payment. She now asks to have it established as a charge against the estate of Catharine Werner. In other words, Katie Biggars received, evidently as a gift, money which the donor did not own, and has been compelled to restore it. I know of no authority for enforcing her claim against the donor. No consideration is proven, and the only characterization which could be given to the transaction is an attempted or unexecuted gift, which is not enforceable. As to the expenses of the executrix it appears that she came to Poughkeepsie from Chicago twice. The first occasion was to attend the funeral of her mother, and on the second she established a permanent residence in Poughkeepsie. It has not been shown that either trip was made necessary by the performance of her duties as executrix. The credits in her account of $500 by reason of the transaction referred to, and $115 for expenses, are therefore disallowed. Decreed accordingly. (39 Misc. Rep. 483.) In re GUTTROFF'S ESTATE. (Surrogate's Court, New York County. December, 1902.) 1. JUDGMENT-LIEN-LIMITATIONS-AMENDMENT. Under the laws existing in 1884 the statute of limitation was a bar to a judgment in six years after it was rendered. By Laws 1894, c. 307, Code Civ. Proc. $$ 376, 382, 3017, were amended so as to make the 20years limitation apply to all judgments thereafter docketed. Held that, a judgment docketed in 1884 being barred before Laws 1894, c. 307, took effect, such statute did not give such judgment any validity. In the matter of the estate of George Guttroff. Application for an order requiring administratrix to pay judgment recovered against decedent. Denied. Charles Thaddeus Terry, for petitioner. THOMAS, S. The application is for an order requiring the administratrix to pay a judgment recovered against the decedent on May 3, 1884, in the Seventh judicial district court of the city of New York. A transcript of said judgment was filed and docketed in the office of the county clerk on May 7, 1884. The decedent died on June 22, 1899. The administratrix appears, and orally admits the possession of sufficient assets, but urges that under the six-years statute of limitation the claim is barred. In Dieffenbach v. Roch, 112 N. Y. 621, 20 N. E. 560, 2 L. R. A. 829, decided in 1889, it was determined that under the law as it then stood the statute of limitations became a bar against such a judgment in six years after it was rendered. By chapter 307 of the Laws of 1894, sections 376, 382, and 3017 of the Code of Civil Procedure were amended so as to make the 20-years' limitation apply to all judgments "hereafter [to wit, thereafter] docketed pursuant to the provisions of section 3017." Section 376. At this time the six-years statute had run against the judgment now being considered, and section 3017 forbade the new docketing of a judgment of a court of record after the expiration of six years from its rendition. It is quite true, as contended by counsel for the creditors, that the legislature might constitutionally have enacted a retroactive statute of limitation. Hulbert v. Clark, 128 N. Y. 295, 28 N. E. 638, 14 L. R. A. 59; Campbell v. Holt, 115 U. S. 620, 6 Sup. Ct. 209, 29 L. Ed. 483. The difficulty is that they carefully guarded against doing anything of the kind by limiting the force of the amendment to judgments which might be docketed "hereafter," to wit, after the amendment became a law. The judgment was barred before the amendment, and the amendment did not give it any force or vitality. In re Warner, 39 App. Div. 91, 56 N. Y. Supp. 585. The application is denied. Application denied. 39 Misc. Rep. 477) and 114 New York State Reporter In re HUNTINGTON'S ESTATE. (Surrogate's Court, New York County. December, 1902.) 1 ADMINISTRATION-INVENTORY-APPLICATION, An application to compel executors of an estate to file an inventory can only be made by a creditor or a person interested in the estate. 2. SAME-SUFFICIENCY. An allegation in an application for an order requiring executors of an estate to file an inventory, alleging that the applicant is a stockholder in a corporation out of which the testate, who was an officer. improperly made large prodts, and that the applicant bad sued in behalf of the corporation to recover the same because the corporation would not do sa is insuficient to show the applicant to be a creditor of the estate, or interested in it, so as to compel the executors a fe an inventory. 8 SURROGATE-JURISDICTION. མ The surrogate is without furisdiction to try and determine a disputed In the matter of the estate of Collis P. Huntington Application for an order requiring the executors to file an inventory. Denied. Robert L. Cutting, for petitioner. Maxwell Evarts, for executors. THOMAS, S. The petitioner seeks to obtain an order requiring the executors of the testator to Ele an inventory of his estate. In the petition he alleges that be "has a large claim against the estate, which he is digently prosecuting," but to other paruculars of his claim are set forth in the afdavit upon which his order to show case is based be sets forth the groms of his daim and cause of action to be as follows: The petitioner is, and since 1894 has been, a stockholder of the Central Pacic Railroad Company. He says that ring the years 1805, or therebom, to 1868, or thereabout," the testator was an offer and director of said company, and that he, together with Leland Stanford, Charles Crocker. Mark Hopkins, and others, controlled its business and corporate acts; and that he and is associates were also interested during those years in the Contract & Finance Company and the Factic Improvement Company. On behalf of the Central Pacific Railroad Company, the testator and is associates entered into cents with themselves, acting under cover of the said companies for the construction and equipment of the Central Panic Rittal and the said construction companies procted by said contracts to the extent of $225.000.x. On these facts the retinoner has mate demand on the board of rectors of the Central Factic Railroad Company to bring suit against the estate of the testator for an accounting and for a decree that the executors of said estate car over to the Central Face Ralroad Company" such sum as stall be fond be on su carg No such action aving been brought by the company, the petitioner has commenced 12. See renters and AFSL ni 2 On DEEL an action for the same relief, which is now pending in the supreme court. If all of these facts are true, and if they are sufficiently stated, and if the action in the supreme court shall end in a decree awarding the relief the petitioner seeks, the petitioner is not, and will not become, a creditor of the estate of the testator. The creditor is the Central Pacific Railroad Company. The only decree that the supreme court is asked to make is that payment be made to it. It, and not the petitioner, can alone release the claim; and the circumstance that the rules of equity as administered in the supreme court permit the petitioner, in an action in which it is made a party, to assert and litigate its claim, does not have the effect of making the petitioner the owner of the claim or the creditor. In Pendle v. Waite, 3 Dem. Sur. 261, it was alleged that the petitioner was a partner of a son of the decedent; that his partner, without his knowledge or consent, paid $10,000 out of the assets of the firm to the decedent, when the actual debt to him did not exceed $100; that this payment was fraudulent and void as to him and the firm creditors, and that "the said firm or its legal representatives" had a valid claim against the estate for said sum of $10,000. It was held by Rollins, S., that these facts did not make the petitioner a creditor, so as to entitle him to an order requiring the executor to file an inventory, and it was said that "it is not enough for him to aver that some person other than himself is a creditor, even though the allegation to that effect is undisputed." The definition of the word "creditor" in section 2514 of the Code of Civil Procedure is not entirely full, but it does not aid the petitioner. He is not a "person having such a claim or demand," since his claim is subordinate to that of the corporation. The principle that would extend the rights of a creditor to him would also include a person having a power of attorney from the creditor, limited to the commencement of an action in the supreme court in his name, and for a specially defined form of relief. The petitioner's claim is disputed and denied. I am without jurisdiction to try and determine the issues raised, or to adjudge the petitioner to be a creditor of the estate of the testator, even if his allegations, uncontradicted, would make him a creditor. I am therefore precluded from awarding him a remedy which he has no right to demand unless he is a creditor. In re Whitehead, 38 App. Div. 319, 56 N. Y. Supp. 989; In re Wagner's Estate, 119 N. Y. 28, 23 N. E. 200, affirming In re Wagner, 52 Hun, 23, 4 N. Y. Supp. 761. The respondent concedes that, until his claim has been reduced. to judgment, he has no strict legal right; but he argues that under the general power of a surrogate to direct and control the conduct of executors and administrators I may and should require the filing of an inventory, as a duty imposed by statute upon all executors. In support of this contention he cites Thomson v. Thomson (1849) I Bradf. Sur. 24; Cotterell v. Brock (1850) Id. 148; Forsyth v. Burr (1862) 37 Barb. 540; Creamer v. Waller (1884) 2 Dem. Sur. 351. Other and later decisions may be found to the same effect, but they all rest on the cases decided by Surrogate Bradford in 1849 and 1850, |