As in the case of a deposit by one person in trust for another, a joint or alternate deposit will not operate, as a trust where it appears that the intention of the depositor was to retain ownership of the fund until his death and that the beneficiary was to take no interest until such time. In the case of Providence Institution of Savings v. Carpenter,76 a deposit was opened in the names of "Margaret Hart or Mary F. Carpenter." The understanding was that the money was to remain the property of Margaret Hart during her life, subject to her own control, and at her death to be the property of Mary F. Carpenter, for the purpose of applying it to religious and charitable uses. It was held that, upon the death of Margaret Hart, the fund belonged to her administrator, and not to Mary F. Carpenter. There was no valid trust for the reason that no present interest passed to Mary F. Carpenter. The transaction was an ineffectual testamentary disposition and void because not executed in compliance with the statute of wills.

§ 20. Estate in joint tenancy created by joint or alternate deposit.-Joint tenants are defined to be persons who hold property, which they acquired by purchase at the same time, in virtue of the same title, interest and possession, and without anything to create a difference in their respective interests or possession."

One of the incidents of an estate in joint tenancy is

75. Carr v. Carr, (Cal. 1911), 115 Pac. Rep. 261. 76. 18 R. I. 287, 27 Atl. Rep. 337, (1893). See also Norway Savings Bank v. Merriam, (1895), 88 Me. 146. Nor will such a deposit operate as a gift. See sections 11 and 28. 77. Abbott's Law Dictionary.

survivorship. Where one of the joint tenants dies the entire estate belongs to the survivor or survivors, and the heirs of the deceased joint tenant do not take any interest or share in the estate.

Deposits in two names have occasionally been given effect as creating an estate in joint tenancy. In the case of Mack v. Mechanics' and Farmers' Savings Bank,78 a depositor changed an account standing in his own name so as to stand in the names of himself and his mother, payable to the "order of either of them." The depositor showed the book to his mother and said, "This is yours." On the day before his death he sent the book to his mother, saying: "Tell my mother to keep it for me." It was held that the deposit constituted a gift of some kind to the mother and that the circumstances pointed to joint tenancy.

In a more recent case,79 the evidence showed that a mother, having a savings bank account, transferred the account to the names of herself or her son. A short time prior to her death the depositor gave the pass book to her sister to keep for the son, with instructions that "if her son came back to give it to him." After the depositor's death the deposit was claimed by the temporary administrator of the son, whose whereabouts were unknown, and

78. 50 Hun (N. Y.) 477, 3 N. Y. Supp. 441, (1883). In Matter of Barefield, (1904), 36 Misc. Rep. (N. Y.) 745, 74 N. Y. Supp. 472; aff'd., 177 N. Y. 387, 69 N. E. Rep. 732, it was said: "The rule is well established that if one person deposits his own money in the joint names of himself and some other party, this indicates an intent to vest the title to the money in the survivor, and that the depositor remains the owner of the fund."

79. Farrelly v. Emigrant Industrial Savings Bank, (1904), 92 N. Y. App. Div. 529, 87 N. Y. Supp. Rep. 54.

by the administrator of the depositor. It was held that, taking into consideration the form of the deposit, the delivery of the pass book and the instructions to hold it for the son, there was an intent on the part of the depositor to vest in the son a joint ownership of the money, and that the survivor should be entitled to the whole.

In the opinion it was said "where the deposit is in joint names and the intent appears to create the joint tenancy, its effect is to vest title to the whole fund in the survivor, and under such circumstances, whether the book be delivered to the survivor or not, or whether he ever has had it in his possession during the lifetime of his joint owner, is not of great consequence, as the intent existing to create the relation of a joint tenancy, title vested in the survivor eo instanti upon the death of the joint owner, and no delivery of anything is necessary to effectuate such result. We think there can be little doubt in the present case but that the intent of the mother was to make her son joint owner with her in the fund, in consequence of which he took immediate title if he survived the mother." There was no evidence that the son was alive at the time of the mother's death and the temporary administrator of the son was held, therefore, not to be entitled to the deposit.

If the quotation above, from the opinion of the court, presents a correct statement of the law it must follow that, in New York, if a person deposits his money in the name of himself and some other person, in such terms that it appears to have been the depositor's intent to create an estate in joint tenancy, then upon the death of the depositor, the fund passes to the person named as

co-owner, although the depositor retained possession of the pass book during his lifetime. This is not in accord with the decisions in other states, nor is it in harmony with the general principles of the law of gift. Where a person opens such an account his apparent intent is to create a gift in favor of the person named as co-owner. It is elemental that there can be no gift without a delivery of the subject of the gift, or at least, of the means of obtaining the property intended to be given. The depositor, in such a case, might withdraw the money after depositing it and thus revoke the gift. In other words, by this means, he might make a gift, revocable at will, and which, in any event, would take effect only in the event of his death. This is violative of the statute of wills. These matters are discussed more at length elsewhere. 80

It must be added that, under a New York statute, a deposit of this character would, to-day, create, an estate in joint tenancy, even without the delivery of the pass book. But, under that statute, once the deposit is opened, and the estate in joint tenancy created, the depositor cannot revoke the gift or take it back. If he draws the money and uses it he is accountable to the donee as any other joint tenant of personal property would be.

The statute referred to was passed in 1907 and provides that when a deposit is made in a savings bank in the name of the depositor and another, in form to be paid to either or the survivor, the deposit and any additions by either shall become the property of both as joint tenants, and

80. See sections 11 and 28.

may be paid to either during the lifetime of both, or to the survivor after the death of one, and the bank is released by such payment, except in case of a payment made after notice in writing not to pay. Similar provisions have been enacted in California and Michigan. 81 While the possibility of fixing a bank account so that two persons shall be joint owners during their mutual lives, and the survivor take all upon the death of one, is well established, 82 it is held in various decisions that the mere form of the account in such a case will not be regarded as sufficiently establishing the intent of the person making it to give the other a joint interest in the deposit. The test is whether the depositor intentionally created a condition embracing the essential characteristics of joint ownership and survivorship, irrespective of the formula used in doing it. In one decision it was written: "The question in this class of cases is whether it was the intention of the creator of the joint estate to give to his joint tenant the right of survivorship, or whether the title was so vested in him in trust for the creator. Where the creator stands in relation of parent towards the joint tenant, the usual presumption is that the arrangement and intention were that the parent was to have the sole use for his life, with the right of survivorship, and the child was to have the right of survivorship."83

81. For the text of all statutes, see Appendix B.

82. Kelly v. Beers, (1909), 194 N. Y. 49, 86 N. E. Rep. 980. 83. Skillman v. Wiegand, (1896), 54 N. J. Eq. 198, 33 Atl. Rep. 929. The mere form of a deposit in two names, either to draw, does not establish an intent on the part of the depositor to give the other of the two a joint interest, with the right of survivorship. In re Meyers' Estate, (1911), 129 N. Y. Supp. 194.