tention is that the language used in the entry, irrespective of the facts and circumstances under which it was made, together with the deposit of the money, operated to make a perfect gift; that the words "joint owners " mean exactly what they imply, namely, ownership, and not mere agency with authority to draw. But the question is not as to the meaning of the words "joint owners" in themselves and apart from the connection in which they are used in the entry. True, these words have an ascertained legal meaning in themselves; yet they are not used here in the definite legal sense imputed to them. In order to ascertain the depositor's intention as manifested by the entry, not only the entry itself, but all the circumstances surrounding her at the time should be considered. Whatever the legal effect of the words "joint owners" generally, it is impossible to give them the broad signification claimed for them, in the connection in which they are used in this case, and with the controlling fact admitted that the aunt always held possession of the bank book. If it be conceded that the case is to be decided upon the legal, technical meaning of the words "joint owners" and that the niece thereby became a joint owner, pure and simple, without any limitation whatever, then it might be conceded that Murray v. Cannon and Gardner v. Merritt, would sustain the theory that delivery to the bank was a delivery to the niece and the gift complete. But we cannot close our eyes to all the other evidence in the case and give effect to two words alone in the entry.

In this case there is no question, as in Murphy v. Metropolitan Savings Bank, 87 Md. 338, as to the rights of the bank under the contract of deposit, but the object is to ascertain who is the legal and true owner of the fund. As between depositor and bank, perhaps the entry in the bank-book might be conclusive, and if the bank had paid the money according to the terms of the entry it might be protected; but as between the depositor or her executor

and the niece, the entry is not conclusive. It is a fact to be considered in connection with the other circumstances of the case to determine the donor's intention. What we decided in Murphy v. Metropolitan Bank, 87 Md. 338, was that under the facts of that case, and because of the express language of the entry that the balance should belong to the survivor, the bank was right in paying it to the survivor.

The contention here that by virtue of the language of the entry there was, at the time it was made, a full, complete and legal transfer to the niece of a joint interest and such a delivery as was necessary to make a perfect gift, cannot be sustained.

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

Whalen v. Milholland, (1899), 89 Md., 199, 43 Atl. Rep. 45.

A opened an account, "A and B, payable to the order of either or the survivor." Later the bank added " joint owners," without A's knowledge or consent. A always retained the book, except that B claimed delivery thereof to her by A a few hours before A's death, which claim was not established by the facts.

Held: A retained dominion and control; the words “joint owners," even if added with A's consent, were not sufficient, of themselves, to convert ownership from A to A and B, and the other facts do not lead to such a result, but show that A's intention was that B should have the money if she survived A, which attempted testamentary disposition cannot be effected by such a form of entry. Hence, the deposit belongs to A's estate.

Further held: Assuming the deposit had been made by A in the name of A and B, as joint owners, payable to the order of either or the survivor, A originally owning the money, and thereafter A had deliberately given the book to B, with

the intention of donating the fund to her, and reserved no control over it herself, upon the acceptance of the gift by B, there would have been a perfected gift of the money, vesting the ownership and right to possession in B. But the circumstances fail to show delivery of the book by A to B.

On May 6, 1891, Elizabeth O'Neill deposited a sum of her own money as follows:

"Elizabeth O'Neill and Mary Whalen; payable to the order of either or the survivor."

Mary was sister of Elizabeth. Later the words "joint owners were added after the name of Mary Whalen when that form was adopted by the bank. Elizabeth could not read and there was nothing to show that she knew of these words being added. Deposits and withdrawals were made from time to time by Elizabeth. retained possession of the bank book until her death, the court finding that a contention of Mrs. Whalen that it was delivered to her a few hours before Elizabeth died was not well founded.

Decree awarding fund to executor of Elizabeth.

She

Held: The original entry was wholly insufficient to effect a transfer and delivery of the funds to Mrs. Whalen or to place them beyond the power of Miss O'Neill to recall. By this form of entry Miss O'Neill did not divest herself of dominion over the deposit, but retained undoubted power to draw the money out of the bank. Hence there was no perfected gift to Mrs. Whalen by the form of the entry as it then stood.

The words "joint owners," of themselves, whatever their technical import, did not operate to vest one-half ownership in Mary when, under the terms of the very paper in which they were used, Elizabeth retained such dominion over the fund deposited that she could at any moment withdraw the whole of it. Particularly so when Elizabeth retained the passbook, which, under the bank's

Further

were not

rules, must be presented to draw the money. more, in this case, the words "joint owners inserted at the instance of Miss O'Neill, but merely because the bank had adopted that form; hence they have no weight in this case.

While there was evidence that Miss O'Neill intended the fund to belong to her sister should the latter survive her, the book entry was ineffectual to accomplish that object, not constituting a valid gift and, for obvious reasons, not operating as a testamentary disposition. The money therefore belonged to Elizabeth at the time of her death, unless the alleged delivery of the book to Mrs. Whalen, or the entry and delivery, constituted a valid donation.

Assuming for the moment that the evidence satisfactorily establishes a delivery of the book, the question is presented whether the gift and delivery of a bank book containing the entry that this one embodies, including the words "joint owners," is in law a delivery of the money credited in the book. Upon this point the court holds that if this deposit had been made by Miss O'Neill in her own and her sister's names as joint owners, payable to the order of either or the survivor, though all the money was in fact the property of Miss O'Neill, and if thereafter she had deliberately given the book to her sister with the intention of donating the fund to her, and reserved no control over it herself; upon the acceptance of that gift by Mrs. Whalen, there would have been a perfected gift of the money, vesting the ownership thereof in Mrs. Whalen and entitling her to the possession of it.

But the circumstances in the case fail to show a delivery of the book by Miss O'Neill to Mrs. Whalen, the evidence adduced to prove the gift of the bank book being too inconclusive and vague to support her claim.

MASSACHUSETTS.

A, TRUSTEE FOR B.

Brabrook v. Boston Five Cents Savings Bank, (1870), 104 Mass. 228.

Where A deposited money " A in trust for B," A retaining the bank book until his death, and never declaring to B that the money was hers, and the facts showed that A did not intend the money for B, but made the deposit in this form to evade a by-law of the bank limiting the amount of deposit in any one name, there was no creation of a trust in B's favor, and upon A's death his executor, and not B, was entitled to the deposit.

On July 10, 1860, David Knowles gave to John T. Dingley $3,000 to deposit for him in defendant bank. Dingley informed Knowles that the by-laws of the bank did not allow so large a deposit in the name of one person but that he could deposit it in the names of his children for himself. Thereupon Dingley by direction of Knowles, deposited the $3,000 in equal proportions in the name of David Knowles and his three children, one of whom is the plaintiff, Eliza H. Brabrook, then Eliza H. Knowles, and took four books from the bank. Dingley informed Knowles of what he had done and showed him the books and he approved of the same. The entry in the bank and the pass-books was as follows:

"David Knowles, trustee for Eliza Knowles."

The deposit remained with the bank unchanged until the death of Knowles, except that interest was from time to time drawn by Dingley, by direction of Knowles, so as to keep the whole sum below $1,000.

Dingley was appointed executor of Knowles and as such claimed the funds in the bank's hands as belonging to his estate. All four of the bank books remained in the possession of Dingley until the death of Knowles, and have since been in his possession as executor.