Prendergast v. Walsh. Larkin v. Soloman, 3 Dem. (N. Y. Sur.) 270; Towle v. Swasey, 106 Mass. 100. The important question is, whether the legacy was adeemed by the testatrix, and therefore the thing bequeathed was not in existence at the time of the death of the testatrix. It is undoubtedly true that a general deposit in a bank creates a debt from the bank to the depositor. The bank is not bound to preserve the money in specie, and it can be paid by the delivery of any money of equal amount. It is also true that a testamentary gift of a debt due to the testator is adeemed if the debt is paid to the testator during his life. But it seems to me that while such a deposit creates a debt, yet the gift of the amount of such deposit as money or cash differs from the gift of an ordinary debt. It will pass by a gift. of all the testator's ready money or cash. Sir Launcelet Shadwell in the case of Parker v. Marchant, 1 Younge & C. 290, 307 (20 Eng. Ch. Rep.), affirmed by Lord-Chancellor Lyndhurst on appeal, 1 Phil. 356 (19 Eng. Ch. Rep.), said: "Undoubtedly an ordinary balance in the banker's hands is, in a sense, a debt due from him; certainly he may be sued for the debt. But it may be equally true that in a sense it is ready money. The term debt, however correct, is not colloquially or familiarly applied to the balance at a banking-house. No man talks of his banker being in debt to him. Men speaking of such a subject say that they have so much in their banker's hands, a mode of expression indicating virtual possession, than a right to which the law applies the term chose in action." * * To the same purport are the cases of Mann V. Executors of Mann, 1 Johns. Ch. 231, and Beck v. McGillis, 9 Barb. 35, 59. In the last case, the court says: "By the bequest of money, of which the testator died possessed, to Mrs. McGillis, she became entitled to the cash, using the popular sense, which at the time of his death the testator had in his possession or deposited in bank, but nothing else." In the present case the intention of the testatrix was, not to give a mere thing in action. What she gave was the money in the banks, using the words in their popular sense. It is true that the money did not exist in specie and would not again be delivered to her or her personal representatives in specie, yet, having put money there, which was still there as money, liable to be drawn as money, so she designated it as money. The thing she bequeathed she drew from the bank. It remained the identical thing bequeathed until disposed of in some way by her. She could have disposed of it by consuming it in living or turning it into other property, or devoting it to a purpose inconsistent with the bequest. She did neither of these things, but, on the contrary, took the specific thing which she got from the bank and kept it until April 1st following, and then, with a slight addition, placed it in the Hoboken bank. While by this deposit in this last-named bank she lost the right to have the same money again in specie, she retained the right to have it as money or cash. If thereafter it was properly designated as money or cash it must be regarded as a part of the same cash which she had taken from the four banks. If the money remained practically the same money, then the removal of it from the place of its deposit did not amount to an ademption. The place of deposit was merely used as descriptive of the thing bequeathed. It was used to identify the particular money given, and it is entirely settled that where the place is merely descriptive the removal of the things to another place is immaterial. Theob. Wills 130. For these reasons I have concluded that this case differs from those which have dealt with gifts of debts due the testator which have been paid to the testator and re-invested. Those gifts were of a chose in action and not gifts of money which remained as such at the time of the death of the testatrix. I conclude, therefore, that the legacy was not adeemed. There is another suggestion made in behalf of the children of Julia Kerrigan, the deceased sister. It is that Julia Kerrigan, although dying before the testatrix, yet our statute to prevent lapses operates to transfer her share to her children. But it is manifest that the date at which the survivorship was to exist was the period of distribution, which, in this instance, was the date of the death of the testatrix. The death of Julia Kerrigan Scudder v. Trenton Saving Fund Society. before that event defeated her legacy. The will of the testatrix gave a share only to a sister who survived her. In the face of this testamentary intention, the statute concerning lapses, by its own provision, became inoperative. The question whether the interest which has accrued upon the funds which were in the banks at the time of the execution of the will is a part of the specific bequest has become of no importance, for the payment of the expenses of administration has left less than the amount on deposit at the time of the execution of the will in the hands of the executor. I conclude, therefore, that $2,420.75 of the amount in the Hoboken bank was the specific thing bequeathed to the three sisters, and such part of it as remains now belongs to Catherine Walsh. JOHN H. SCUDDER, administrator, V. TRENTON SAVING FUND SOCIETY. [Filed April 10th, 1899.] A deposit in a savings bank made in the name of "W. P. S., Surrogate," can be drawn by the administrator of W. P. S. This is a bill filed to collect a sum of money which represents the principal and interest upon certain deposits made by William P. Sherman, then surrogate of the county of Mercer. Mr. Barton B. Hutchinson, for the complainant. Mr. John A. Montgomery, for the defendant. REED, V. C. Mr. Sherman, in the year 1851, while he was surrogate of Mercer county, made certain deposits in the bank of the Trenton Saving Scudder v. Trenton Saving Fund Society. Fund Society, in the name of William P. Sherman, surrogate. The depositor died leaving a balance undrawn. The bank, on account of the official suffix to the depositor's name, have felt that it was unsafe to pay the amount upon the check of the personal representative of the depositor; hence this bill by the present administrator de bonis non of the deceased depositor. The bill seeks to have the deposit entry reformed by canceling the official addendum to the name of the depositor, and to have a decree that the bank pay upon the check of the complainant. Nothing appears in the case save the mere facts thus stated. It does not appear that at the time of the several deposits there was any trust fund under the control of the surrogate. Nor does appear that there is any statutory provision for an official fund to be held by the surrogate, either as surrogate or as an officer of the orphans court. It is impossible, then, to conceive who could be beneficially interested in the said fund apart from the depositor himself. it The appendage to the name of the depositor, I think, was intended as a personal method of marking this money as part of the income of his office, and so to segregate it from other money, or it may have been employed to indicate the position the depositor then held without any other significance. Whichever notion induced the conduct of the depositor, in my judgment the addendum was merely descriptio persona. Such judicial sentiment as I have discovered is to the effect that such a suffix does not imply that the money that he deposited was held in trust. In the case of Swartwout v. Mechanics Bank of New York, 5 Den. 554, the plaintiff had made a deposit in the defendant's bank in the name of Samuel Swartwout, collector. His term as collector of customs expired, and he drew a check as late collector, which the bank refused to pay, upon the ground that it was an official deposit and belonged to the United States. But the court held that, in the absence of any statute requiring the collector to make a deposit of official funds in a bank, it was to be regarded as a mere personal deposit. The court said: "A county treasurer, sheriff, surrogate or such other officer opens an account with a bank with his addition, and keeps a separate Scudder v. Trenton Saving Fund Society. account in such capacity, most clearly he can collect such deposit in his own name, and the bank would not be permitted to show that the moneys belonged to the county." In Powell v. Morrison, 35 Mo. 244, it was held that the words "sheriff of St. Louis county" added to the name of a maker of a promissory note, was no notice to a holder to whom the payee had endorsed it that the note was drawn upon trust funds. So in Eyerman v. Second National Bank of St. Louis, 13 Mo. App. 289; affirmed, 84 Mo. 408, it was held that the words "county treasurer added to the name of a depositor raise no presumption that it belongs to the county. But if the addendum implied a trust, it would not defeat the right of the personal representative of the depositor to withdraw the deposit. The trust which inhered in the depositor, upon his death, passed to his personal representative, who would be bound to administer all the assets of the deceased as trustee of whatever kind, and to administer the trust with which those assets are charged. 1 Perry Trusts § 264. In Boone v. Citizens' Savings Bank of the City of New York, 84 N. Y. 83, the facts were as follows: Susan Boone deposited in the bank $500, receiving a pass-book in which was the entry "The Citizens' Savings Bank in account with Susan Boone, in trust for Thomas Boone." The entry was so made at the request of the depositor. After her death the bank paid the amount to her administrator. An action was afterwards brought against the bank to recover the same amount, by the administrator of Christopher Boone, the cestui que trust, who had also died. The court of appeals held that the payment to the administrator of the depositor was valid. Judge Finch, in delivering the opinion of the court of appeals, said: They [the bank] received the money as bailees, agreeing to pay to Susan Boone, trustee. What the trust was they neither knew nor were bound to know. That was a matter wholly between the * * trustee and cestui que trust, at least until the latter gave notice to the bank of a hostile claim. * We are of the opinion that upon the death of Susan, her rights as trustee devolved upon her administrator. * * When therefore he appeared at the bank and produced his letters of administrator and the pass-book, * |