The bank brought this bill of interpleader, to determine whether Mary F. Carpenter or the administrator of Margaret Hart was entitled to the deposit.

Held: The question is whether, under the facts, the fund belongs to the administrator of the estate of Margaret Hart or to Mary F. Carpenter. On the part of the latter it is claimed that the transaction amounted to a gift inter vivos, or at least to a valid declaration of trust in her favor.

The cases all agree that to transfer title there must be a completely executed gift or trust. They differ in regard to what constitutes such an execution.

The uniform rule, as recognized in Ray v. Simmons, 11 R. I. 266, is that the circumstances must show that the donor holds the fund in presenti as trustee for another. This element is wholly lacking in the present case. Not only was it understood by the parties that the money was to belong to Margaret Hart while she lived, but under the form of deposit she was enabled to withdraw the whole and to apply it to her own use, without a breach of any trust express or implied.

The arrangement was of a purely testamentary character. We are of opinion that the evidence in this case does not show a executed trust, but only a testamentary disposition; that it does not show a gift inter vivos and that there was no transfer of the title from Margaret Hart to Mary F. Carpenter. The fund in question, therefore, belongs to the administrator of Margaret Hart.

A AND B; PAYABLE TO EITHER OR THE
SURVIVOR.

Woonsocket Institution for Savings v. Heffernan, Admr., (1897), 20 R. I. 308, 38 Atl. Rep. 949.

A deposited money in the name of " A and B; payable to either or the survivor," and left the book with a third party for safe-keeping. Shortly before her death, she notified B of

the deposit and sent word to him to come and get the book and he could get the money at any time. A died before B got the book.

Held: The fund belongs to A's estate. B did not receive the book during A's life, and A's control over, and title to, the deposit continued to her decease. There was no completed gift.

On May 16, 1885, Catharine Maroney made a deposit in the savings institution in the following form:

"Catharine Maroney and John Maloney; payable to either or the survivor."

Shortly after that date she left the deposit book with the Rev. George Maloney for safe keeping. On January 1, 1887, she sent word to John Maloney by his wife to come and get the book and he could have the money at any time. This was the first knowledge John Maloney had of the deposit. Catherine Maroney at the time of sending word to John Maloney, was ill, with what proved to be a fatal illness, though it does not appear that she was aware at that time that her illness was to be fatal. She died a few weeks subsequently and before John Maloney had gone to get the book.

The bank brought a bill of interpleader against John Maloney and the administrator of Catherine, to determine the title to the deposit.

Held: The question is whether in this state of facts John Maloney is entitled to the fund. We think not. Though the deposit was made in the joint names of Catherine and John, she retained control over the deposit book, without which the money could not be drawn; and though she sent word for him to come and get the book, he did not do so, and the control over the deposit, therefore, remains with her until her decease. This being so, the gift of the deposit was not complete and it remained her property. A decree must therefore be entered for the payment of the fund to the administrator.

A IN TRUST FOR B.

People's Savings Bank v. Webb, (1899), 21 R. I. 218, 42 Atl. Rep. 874.

A mere deposit by A in trust for B does not create an irrevocable trust in the absence of evidence of intent except in the case of A's death.

James H. Webb deposited money in a savings bank in his own name in trust for his son, Fred E. Webb. The only evidence tending to show intent to create a trust was that fact that James Webb told his wife about the deposit. It was held that this was insufficient to establish an irrevocable trust and that the deposit belonged to James Webb.

In the opinion it was said: "There is a unanimous agreement (in the decisions) that the creation of a trust, as to a deposit, is a question of intention, and so a question of fact. None of them hold that a trust is conclusively constituted by the deposit itself. Some go so far as to hold that a deposit in the name of another, without any mention of a trust, is still open to inquiry. The strictest rule in favor of the trust seems to be this; that the intention to create one may be presumed when the depositor dies, leaving the matter unexplained and the apparent intention undisputed. It is certainly clear that the depositor is not conclusively bound by the mere form of a deposit as trustee for another. The proposition rests upon the good reason that one who is dealing with his own property, either ignorantly or for convenience, or pursuant to a purpose, not fully determined or executed, should not be held to have dispossessed himself against his will."

VERMONT.

MONEY PAYABLE TO A IF CALLED FOR BEFORE DECEASE; IF NOT, TO B.

Blanchard v. Sheldon, (1871), 43 Vt. 512.

A, intending to invest $300, so that if she needed any part of it during her lifetime she could collect it, and if she died without collecting it the money should be B's, invested the money in an obligation of S, which promised to pay the amount and interest to A if she called for it before her decease, if not, to pay it to B. A retained this obligation until her decease, and never called for any of the money.

Held: There was a valid gift inter vivos to B, consummated by delivery to S. The gift is none the less valid because subject to the condition that A might collect some part or the whole of it during her life. The time for A's election having expired with her decease, the gift was thereby freed from all condition of defeasance, and B's right to immediate possession thereupon became absolute.

Aurilla Ballou, having $300 in money, expressed a wish so to invest it that if she should need any part of it during her lifetime, she could collect it, but if she should die without collecting it, the money and interest should go to Daniel L. Blanchard. Her son, Henry L. Sheldon, proposed to take the money and furnish security that her desire should be carried out. Thereupon Mrs. Ballou delivered to him the $300, and took from him the following writing, which Miranda Hines signed as surety:

"For value received, I promise to pay Aurilla Ballou, three hundred dollars, with annual interest, if she called for it before she deceased, if not to be paid to Daniel M. Blanchard by her order. January 12, 1867.

Henry L. Sheldon,
Miranda Hines."

Mrs. Ballou kept this instrument with her other papers for a while, but before her decease sent it with other papers in a box to James Sheldon, the executor of her will, who retained the custody until after her decease.

After Mrs. Ballou died, Daniel M. Blanchard demanded the instrument of James Sheldon, but he refused to give it

up and collected the money due on it as part of her estate.

In this action by Daniel M. Blanchard against James Sheldon,

Held: Plaintiff did not acquire title to this $300 as a donatio causa mortis for at the time this arrangement was entered into Mrs. Ballou was in ordinary health, but the transaction can be upheld as a gift inter vivos.

Mrs. Ballou clearly intended to give the money to Blanchard, reserving to herself a contingent right to collect it if she should need it for her support. The writing, though somewhat inartificially drawn, evidenced this intention. We think the clear purport of that instrument is that the makers promised to pay Blanchard the $300, with annual interest by order of Aurilla Ballou, with the right on her part to call for and collect it, if she elected so to do in her lifetime; and that she delivered the $300 to Henry L. Sheldon, as the money of Blanchard and for Blanchard, and not for herself, further than if she should be in need of it and elected so to do, she could collect it for herself. This delivery vested the property of the $300 in Blanchard subject to be defeated only by Mrs. Ballou's taking some further action in regard to it. So long as she refrained from calling for it, Henry L. Sheldon continued to hold the $300 for Blanchard.

A gift inter vivos may be delivered to a third person to hold for the donee. To constitute a valid gift inter vivos there must be both a delivery of the gift by the donor to the donee, or to some one for the donee, and an acceptance by the donee. In this case there was a delivery of $300 by the donor to Henry L. Sheldon for Blanchard. The law presumes the acceptance of a gift by the donee when it is unaccompanied by any condition to be performed by the donee. Nor do we see on principle how a gift, if absolute, and delivered to a third person for the donee, but not to be delivered to the donee until the happening of