by her direction were respectively entered upon the books as joint tenants with her. But we think it is clear from the nature of the transaction that she did not intend by this transfer of her deposit to the new accounts, to make at that time fully executed gifts either of the legal or equitable title to the new deposits, or to part with all control over the same, except such as she might retain as trustee for the benefit of others; but rather that her intention was to make a testamentary disposition of these deposits so that the persons named should each take, in case he or she survived her, what might be left of each sum after her death. Such an attempted disposition is inoperative because contrary to the statute of wills.

It cannot be claimed that the persons named as joint tenants could draw any portion of the funds until after the death of Mrs. Reed; until that time she intended to retain possession and control, not merely as trustee. It was only after her death that the survivor should have the benefit of the money deposited; until that time the attempted gift was not to take effect.

There is a well-recognized distinction, and one upon which may depend the validity of the transaction between a fully executed gift or trust in which the donor reserves the right to the income or even to such part of the principal of the fund as may be needed, and an unexecuted trust which is not to take effect until the death of the donor.

Our conclusion, therefore, is that there was no perfected gift of either the legal or equitable title to the sums deposited by Mrs. Reed in the Norway Savings Bank, and that these deposits consequently belong to her estate.

A OR B, PAYABLE TO EITHER.

Bath Savings Institution v. Fogg, (1906), 101 Me. 188, 63 Atl. Rep. 731.

A deposit by A in the names of A and B, where A intends that, upon his death, B shall have the deposit, and where A

retains the pass book and does not notify B of the deposit, does not constitute a gift or a trust in favor of B.

Jane Cruikshank deposited money in a savings bank in the names of herself or her sister, "payable to either." She stated to the treasurer of the bank that her object in so opening the account was that, upon her death, her sister might have the money. The treasurer told her that, in order to make sure of the accomplishment of her object, she should notify her sister of the deposit and deliver the book to someone for her sister. It did not appear that the depositor ever heeded this advice. It was held that the depositor had not made a valid gift for the reason that there was no delivery of the deposit, or of the evidence of the deposit. It was manifest from the conduct of the depositor that she never intended relinquishing dominion and control over the fund during her lifetime. Her express wish was to make the deposit upon such terms that it would operate as a transfer of the fund at her decease.

For the same reason that she never intended the sister to have any beneficial interest in the fund until after her death, there was no valid trust in favor of the sister.

MARYLAND.

B, SUBJECT TO ORDER OF A.

Gardner v. Merritt, (1869), 32 Md., 78.

A deposited money in the name of " B, subject to order of A," B being A's grandchild, and the by-laws of the bank providing that parents might deposit for the benefit of children, subject to the control of the parent. A declared she was going to put the money in bank for the child, and she excluded this particular child from her will. A had an account of her own in the same bank. After A's death her daughter drew the money, and B thereupon sued the daughter therefor.

Held: There was a gift of the money by A to B at the time

of deposit, which was perfected by delivery to the bank as bailee for B. The words "subject to order of A A" do not signify that A retained ownership, and only intended a future gift to B. Interpreted in the light of the bank's by-law, as well as in view of all the facts, they mean that A's control was such as might be necessary for the protection of B's interest, B having title, and not that A's control was that of owner of the deposit.

On September 4, 1860, Susanna A. Merritt opened an account in the Savings Bank of Baltimore in the name of her grandchild, a son of one of her daughters, then deceased, as follows:

66

John G. Gardner, subject to the order of Susanna A. Merritt, or Susanna Merritt."

She continued to make deposits in this account down to the time of her death. At the time of the first deposit she declared she "was going to put the money in bank for the child." The bank was organized for the purpose of receiving such small sums of money as are the profits of industry, or donations to widows, children and others; and its by-laws provided that guardians could deposit for the benefit of wards and parents for the benefit of children, and if desired at the time of deposit, subject the same to the control of such guardian or parent.

In 1858 Susanna A. made a will devising all her property to her living children, and excluded her grandchild, John G. Gardner, from all benefit of her estate. The estate so devised had been given to her by all her children, including Mrs. Gardner, who was then alive. The deposits in the savings bank in the name of John G. Gardner were the products of property which had been conveyed to her in his name. Prior to opening the account she had been in the habit of giving to the mother, when living, or to the father, such products. Then she declared her intention to stop giving it to the father and to put it in bank for the child-that she wished him and not the father

to have it. A. was also

own name.

During all the time of these deposits Susanna making deposits to a separate account in her

After the death of Susanna A. the deposits were withdrawn by Susanna, daughter of Susanna A., and claimed by her to belong to the latter's estate. In this suit by John G. Gardner against Susanna, he is adjudged entitled to the money, with interest from the time of withdrawal.

Held: Did these moneys become, when deposited, perfected gifts to the grandchild, or did they remain the property of the grandmother-were the gifts perfected, or do the facts manifest an intention to give in futuredid the acts of making the deposits, under all the proof, divest the grandmother of the title to the moneys, and vest the same in the grandchild?

The grandmother must be presumed to have had knowledge of the bank's by-laws, authorizing parents to deposit for the benefit of children and subject same to control of the parent, for she acted on them by making the deposit for the benefit of the grandchild, subject to the order of herself or daughter Susanna.

It is contended that because of the words "subject to the order of " the depositor, the deposits did not become the property of the grandchild, but remained the property of the donor; that these words explained and limited the acts of deposit to the effect of a declaration of an intention to give in future.

In the absence of these words, it is clear the declaration of an intention to give, followed by actual delivery of the subject matter of the intended gift, to a bailee, for the benefit of the donee, constituted a perfected gift. A gift is inoperative without delivery. To be valid, it can have no reference to the future, but must go into immediate and absolute effect. The delivery may be to the donee, or trustee, or guardian acting for the donee, or to any bailee of the donee. All these conditions were met in

this case.

The money was delivered by the donor to the bank as bailee of the grandchild, by direction of the donor that it should be entered to his credit in an account standing open in his name.

The words "subject to the order of " the depositor are not liable to the interpretation claimed by the daughter, but are to be interpreted in reference to the language of the by-law that parents may deposit for the benefit of children, and subject the deposits to the control of the parents. These deposits when made were for the benefit of the grandchild; the delivery to the bank for the benefit of the grandchild was a perfected gift to him, and the control retained by the grandmother, or her daughter, was such control as is contemplated by the by-law-a control for the benefit of him to whose use the money was delivered such control as might be necessary to the protection of the interests of the donee, of the same nature as a guardian might exercise for the benefit of his ward, and not such control as would pertain to a continuing legal power and dominion over the deposits.

Further held that this construction of the effect of the words in question is sustained by a review of all the facts in the case. There are no facts from which it can be argued that her purpose in making the deposit was to make a future gift, but all the facts indicate that the act of deposit was intended as a delivery and immediate perfection of the gift.

A, SUBJECT TO HIS ORDER OR TO ORDER OF B.

Murray v. Cannon, (1874), 41 Md. 466.

A deposited money "A, subject to his order or to order of B," his daughter. B first had possession of the book, then C held it, and returned it to B after A's death. Held: The money was deposited to the credit of A, who retained dominion and control over it to his death. B's possession was as agent of A and not as owner, and the agency was revoked by A's