The opinion
Church, S.
— This is a motion to confirm the report of a referee on a hearing had on objections to the account of the administrator.
It appears that the administrator, who was the husband of the deceased, deposited twenty-five hundred dollars ($2,500) in a savings bank, in trust, however, for the deceased, and the question is whether he should be charged with this amount in his account. Where an acSount is opened in this manner in a savings bank, and there is no other explanation attending the intention of the depositor, it has been held that it will be presumed that the deposit is the property of the beneficiary, but this presumption is liable to be rebutted, and the sole question then becomes the intent of the depositor. Cunning *451 ham v. Davenport, 147 N. Y. 43 ; Board of Missions v. Mechanics’ Savings Bank, 40 App. Div. 120 .
Tbe referee bas found, from all of tbe evidence taken before bim, that it was not tbe intention of tbe depositor to give tbis money to tbe deceased, but that it was deposited by bim for bis own use, with tbe intention to remain tbe legal owner thereof, and a careful examination of tbe evidence sustains tbe correctness of bis decision.
I have examined with care tbe very carefully drawn briefs of tbe contestants, but I do not think there is anything in tbe decisions which would warrant me in bolding that this money was tbe property of tbe beneficiary.
Tbe motion to confirm tbe report of the referee is granted.
Motion granted.