"Lawrence McDonald, Sarah McDonald, and the survivor, subject to the order of either."

On January 4, 1876, the following entry was also made: "In consideration of my natural love and affection for my wife, Sarah McDonald, I give to her all of the money belonging to me credited or to be credited in this book, and I direct the same be paid to her and her receipt shall be good for the same.

Lawrence McDonald."

After these entries McDonald continued to make deposits and withdrawals; his wife also drew money from time to time upon presenting the pass book. Husband and wife died on the same day, the wife surviving the husband about an hour. Decree that the money belongs to the estate of the husband.

Held: Was there a valid gift by husband to wife? There was no actual delivery of the money by husband to wife. Were the acts of the husband in a legal sense, equivalent to an actual delivery of the money?

In some states it has been held that an assignment in writing and delivery of a pass book with intention to vest immediate title, will vest in the donee a valid title to the money. But here, it is unnecessary to decide this, for there was no delivery by husband to wife of the pass book with intention on his part of renouncing all interest in the deposits and transferring to her absolute title to the same. During his life, he continued to draw and use the money, showing beyond question that he never meant to relinquish his right over the deposits. If there was a complete gift to the wife, then he had no right to appropriate it to his own use. But there can be no gift so long as the donor retains control and dominion. A mere promise to give, however explicit, is insufficient, as it is a promise without consideration and cannot be enforced.

Although the husband did not mean to relinquish his

right to the money during his life, he did mean that whatever remained in bank at his death should go to his wife if she survived him. But these entries cannot operate as a testamentary disposition of property because they are not executed as the law requires.

There was no valid gift by husband to wife.

A AND B, SUBJECT TO ORDER OF EITHER; BALANCE AT DEATH OF EITHER TO BELONG TO SURVIVOR.

Metropolitan Savings Bank v. Murphy, (1896), 82 Md. 314, 33 Atl. Rep. 640.

A opened an account, " A and B, subject to order of either; balance at death of either to belong to survivor." B was A's wife. A made subsequent deposits, but no withdrawals. Upon A's death, the bank paid the balance to B.

Held: Payment to B was authorized. A did not retain dominion and control, but contracted with the bank that the money should be subject to order of either A or B, and should "belong" to the survivor, and the bank merely carried out its contract by paying B after A's death.

Michael Murphy deposited a sum of money in a savings bank in an account:

"Michael Murphy and Ann Murphy, subject to the order of either; the balance at the death of either to belong to the survivor."

He made additional deposits from time to time, but no money was withdrawn until after Murphy's death. Thereafter, the bank paid the money to Mrs. Murphy. In a suit by the administrator of Murphy, to recover the amount from the bank, there was a decree in the bank's favor.

Held: Had the bank authority in law to make the payment to Mrs. Murphy after the death of Murphy? Murphy's administrator claims the payment was unauthorized. In paying the money to Mrs. Murphy the bank carried out in good faith the strict letter of its con

tract. This is not a case where the husband retained possession and control of the account in bank and continued to draw therefrom such sums as his wants might indicate, as in Dougherty v. Moore, 71 Md. 248. Nor is the language controlling the ultimate disposition of the joint account in this case in any respects similar to that of Dougherty v. Moore.

The bank's instructions in opening the account were that said account shall be subject to the order of either husband or wife and that at the death of either the balance shall belong to the survivor. Nothing could be clearer than the object and intention of the parties to the contract in the language employed by them in opening the joint account. We entertain no doubt as to the legal effect and meaning of the entry at the head of the account. True, title was originally vested solely in the husband, and it was his privilege to make such disposition of the same as he thought proper. He had the indisputable right to enter into any contract with the bank that would accomplish his purpose in securing to his wife the protection which these savings deposits might give to her. The property in controversy consisted of deposits which by the direction and authority of the husband, assented to by the bank, were entered in its books to the credit of husband and wife, with the understanding and contract with the bank indorsed thereon as hereinbefore stated. The parties were capable of contracting, and having actually contracted, the law exacts fulfilment, which the bank has done; and we do not think, after it has fully executed its part of the contract, it ought now to be required to pay to the administrator of the husband, the money which it promised to pay, and had already paid, to the wife, unless some legal requirement can be established demanding its payment to the administrator.

This transaction partakes somewhat of the nature of an equitable assignment, looking to the interest of the

parties rather than to matter of form, and the question of the survivorship depended solely upon some contingency. But looking at the controversy from whatever point we may, we think the bank paid rightly to the wife the balance standing to the joint credit of herself and husband at the time of his death.

A AND B, SUBJECT TO THE ORDER OF EITHER OR THE SURVIVOR.

Baker v. Hedrich, (1897), 85 Md. 645, 37 Atl. Rep. 363. In this case the deposit in this form was shown to be the property of B, the wife, and not of A, the husband, when deposited; hence when A died, it was adjudged that the money belonged to B, the surviving wife, as against the administrator of A; and the question of what was necessary to make a gift, did not enter.

A AND B, JOINT OWNERS, PAYABLE TO ORDER OF EITHER OR THE SURVIVOR.

Gorman v. Gorman, (1898), 87 Md. 338, 39 Atl. Rep. 1038.

A made a deposit entered "A and B, joint owners, payable to the order of either or the survivor." A always retained the book, made a will disposing of the fund in bank, and there were other facts showing no gift to B was intended. Upon A's death,

Held: A retained dominion and there was no gift to B. The technical, legal meaning of the words "joint owners," taken by themselves will not be accepted as decisive and as warranting the conclusion that they indicate a giving of joint ownership to B, as distinguished from agency with authority to draw, perfected by delivery of the money to the bank; but these words will be interpreted in connection with the entire language of the entry and in view of all the facts; and so interpreted, there was no intention by A to make B a joint owner, nor such delivery as is required to make a perfect gift.

If, however, the bank should pay B, after A's death, according to the terms of the entry, it might be protected.

Theresa McConnell went with her niece Maggie S. Gorman, to the Savings Bank of Baltimore and opened

an account:

66

Theresa McConnell and Maggie S. Gorman, joint owners, payable to the order of either or the survivor."

The niece asked her aunt to let her see the bank book, but was refused permission. Before her death the aunt made a will disposing of the fund in bank. The bank's teller testified it was the custom to call the attention of depositors to the words "payable to the order of either or the survivor" and to make the fact known to them that in case one dies, the other can get it-provided the survivor produced the book. Some such statement was made to the aunt when this deposit was made for when she was leaving the bank she remarked to her niece: "Wasn't that a funny remark the clerk made, saying that you could draw the money. I don't see how you can draw it, while

I have the book." The aunt retained possession of the book until her death. There were other facts in the case, the tendency of all being to show that no gift to the niece was intended.

Upon the death of the aunt it was decreed the money belonged to her estate, and not to the niece.

Held: While the language of the entry is different from that used in other cases, a careful consideration of the entry itself and all circumstances in the case forces the conclusion that it was not the intention of the aunt to make the niece a joint owner, and, secondly, if any such intention ever existed, there was no such delivery of the money as is required to make a perfect gift.

The whole contention on behalf of the niece, hinges upon the words "joint owners." The circumstances surrounding the transaction, so far from establishing an intent to make a gift, show the contrary. But the con