Gaulkin, Sullivan and Lewis. The opinion of the court was delivered by Lewis, J.A.D.
On plaintiff's motion, the Monmouth County Court entered summary judgment from which defendant appeals. The form of judgment against "John Massey" is not challenged.
From the meager record before us it appears that Elizabeth Kloppenberg, also known as Elizabeth Martin, died testate on October 11, 1961 and, the executors designated in her will having refused to act, John Massey was appointed administrator c.t.a. Precisely one month prior to her death, decedent opened a savings account in the amount of $1,273.34
at the Keansburg National Bank "in trust for Edward Tansey," the plaintiff. Anna C. Tansey, plaintiff's wife, was present on October 12, 1961 when an inventory was taken of decedent's personal property which disclosed the existence of a pass book evidencing the aforesaid bank account. Prior to that time the Tanseys were unaware of the deposit. The trust account was withdrawn by the administrator c.t.a. , one-half thereof on November 21, 1961 and the balance on May 29, 1962, and was deposited in an estate account. On the day last mentioned the estate was distributed.
We have not been furnished with a copy of decedent's last will and testament or the fiduciary's inventory of assets. There is no evidence that the administrator c.t.a. sought judicial instructions, rendered an accounting (either formal or informal), obtained an order of distribution, or secured releases and refunding bonds from the distributees.
In an affidavit of John Massey (administrator c.t.a.) he declared, "I have spent the monies which I was entitled to and so have the other heirs, my brother and sister, and are unable to pay any sums to claimant. To do so would create an extreme hardship." The trial judge, in entering summary judgment for the plaintiff, expressed the opinion that the beneficiary named in the aforesaid account was entitled to the proceeds thereof upon the death of the depositor-trustee. With that conclusion we agree.
It is conceded that our courts have adhered to the prevailing common law doctrine, in civil matters, that "[a] change of the established law by judicial decision is retrospective." Fox v. Snow , 6 N.J. 12, 14 (1950). But defendant argues that the rule is not absolute and the retrospective operation of a judicial determination is not to be employed when, as here alleged, he has been prejudiced by reliance upon prior court determinations, citing in support of such an exception Terracciona v. Magee , 53 N.J. Super. 557 (Cty. Ct. 1959), Arrow Builders Supply Corp. v. Hudson Terrace Apts. , 16 N.J. 47 (1954), and Sofman v. Denham Food Service, Inc. , 37 N.J. 304 (1962). However, those cases
emphasize that a decision overruling a former doctrine may be limited to prospective application only where a defendant demonstrates affirmatively that he has been prejudiced to a substantial degree by justifiable reliance upon a rule previously stated by the highest court. Sofman v. Denham Food Service, Inc., supra , at p. 314. See generally 14 Am. Jur., Courts , § 130, pp. 345-347 (1938), and 21 C.J.S. Courts § 134, pp. 326-330 (1940).
The administrator c.t.a. , in making distribution as he did, allegedly relied upon three judicial authorities that dealt with trust deposit accounts created in a manner similar to the account under review, viz: Bendix v. Hudson County National Bank , 142 N.J. Eq. 487 (E. & A. 1948) (deposit in 1944); Howard Savings Institution v. Quatra , 38 N.J. Super. 174 (Ch. Div. 1955) (deposits in 1948 and 1951); and Howard Savings Inst. v. Kielb , 66 N.J. Super. 98 (Ch. Div. 1961) (deposits in 1931, 1946, 1948 and 1950). The deposit dates are significant in determining applicable law, and we here note that in the case sub judice the deposit was made on September 11, 1961.
Since the original Banking Act, numerous amendments and re-enactments have been adopted by the Legislature. The Banking Act of 1948 (chapter 67, effective in September of that year) repealed R.S. 17:9-4 and substituted N.J.S.A. 17:9A-216. There have been three subsequent amendments to that section: L. 1949, c. 286, § 1, p. 880; L. 1953, c. 17, § 34, p. 174; and L. 1954, c. 209, § 1, p. 770.
The original N.J.S.A. 17:9A-216 (1948) was similar to R.S. 17:9-4, which was construed in Bendix v. Hudson County National Bank, supra , 142 N.J. Eq. , at p. 491, to the effect that the mere opening of a bank account in the name of a depositor in trust for another was not conclusive of an intention to make an absolute gift or to create an irrevocable trust. The court said, "It is necessary that there be 'some unequivocable act or declaration clearly showing ...