In De Puy v. Stevens, a depositor, A, a woman advanced in years, gave B, a friend whom she was visiting, a check payable to new account or bearer, for the entire balance of the account. B informed the treasurer of the bank that A was in poor health and wished to have the account so arranged that money could be withdrawn without compelling her to sign checks. The account was accordingly changed to "A or B, either or survivor to draw." It was held that the evidence did not disclose an intent to create a joint tenancy and, therefore, that no joint tenancy was created.

§ 21. Gift through medium of joint or alternate deposit. In many cases, where a person deposits his money in his name and that of some other person, or causes his individual account to be changed so as to stand in two names, he is deemed to have made a gift of the deposit. In this regard it is customary to refer to the depositor as having "money in the bank." The expres sion is figurative. There is, in fact, no "money money" of the depositor"in the bank," and the depositor has no title to any fund in the bank. When the depositor places his money with the bank he parts with it absolutely in every instance, and in its place he accepts the contract of the bank to pay him either an amount of money from time to time equal to that which he has paid the bank, or a greater amount, according to the terms of the contract of deposit. In short the bank is the depositor's debtThese are very simple and obvious facts, but a perusal of many of the bank deposit cases indicates 84. 37 N. Y. App. Div. 289, 55 N. Y. Supp. 810, (1899).

or.

that they are not infrequently overlooked, even by the courts. 85

§ 22. Definition and essentials of a valid gift.-A gift is defined as a voluntary and gratuitous transfer of a thing. The term is usually applied to voluntary transfers of personal property. A gift is a contract, but differs from the ordinary contract in that the gift is made without consideration, that is, it is made gratuitously. In general a contract is not binding unless supported by a consideration. A gift, as the name implies, is made without consideration. If a man promises to transfer certain shares of stock to another gratuitously, he cannot be held to his promise for the reason that the promise is supported by no consideration. The promise cannot operate as a gift for the reason that a gift cannot be made to take effect at a future time. But, if the owner of the stock delivers it into the possession of the donee, with the intent of transferring title to him, there is a valid gift, and the fact that the transfer is gratuitous, or without consideration, is immaterial. The donee gets a good title to the stock and the donor cannot afterwards take it back.

The gift to be valid, must be completely executed. If anything remains to be done to complete the gift, what is undone cannot be enforced, it being without consideration. If not completed during the lifetime of the donor, his death revokes the part which has been performed.

Delivery of the property, which is the subject of the gift, with the intent to give, is absolutely necessary to 85. Dunn v. Houghton, (N. J. 1902), 51 Atl. Rep. 71.

the validity of the gift. The owner must part with his dominion and control of the thing before the gist can take effect. The circumstances must show that a present gift is intended. A gift, which is to take effect at a future time is void. The delivery, however, need not be simultaneous with the words of gift, but may precede or follow them. Where reasonably convenient there should be a physical delivery of the subject of the gift. But this is not always essential. In the case of bulky articles it is sufficient if the donor relinquishes possession to the donee.

In some cases delivery, sufficient to establish a valid gift, may be made by delivering the means of obtaining the property, as by delivering the key to a room or å trunk, containing the property to be given. This is known as constructive or symbolical delivery. The delivery of a savings bank book, standing in the name of the donor, is sufficient to constitute a gift, where the donor so intends. These are the general principles of the law of gifts and they apply with the same force to deposits in two names as to gifts in any other form.

Thus far we have been referring to gifts inter vivos, the usual form of gift. Gifts causa mortis are mentioned in many of the bank deposit cases and should be taken up briefly here. A gift causa mortis is defined to be a gift of personal property, made by a person in expectation of death, then imminent. Such a gift, however, takes effect only in case of the donor's death and it may be revoked by the donor at any time before his death. In this respect gifts of this class differ from gifts inter vivos and constitute an exception to the general rule that a gift cannot be made to take effect in the future. They re

semble gifts inter vivos in that there must be a delivery to make the gift effective. The rules respecting delivery, which apply to gifts inter vivos and which have been stated above, apply here.

§ 23. Intent of depositor governs.-When a person deposits his money in two names, the question of whether or not a gift has been made depends upon the intent of the depositor. If the depositor did not intend to part with title to the money, and this can be shown, then it must follow that no gift was made and the ownership of the fund remains in the depositor. Where it appears that the depositor did not intend a gift, there can be no gift, no matter in what terms the account was opened. The case of Gorman v. Gorman 86 is a good illustration. An account was opened in the Savings Bank of Baltimore in the names of "Theresa McConnell and Maggie S. Gorman, joint owners, payable to the order of either or the survivor." The money belonged to Theresa McConnell, who was an aunt of Maggie S. Gorman. Before her death the aunt made a will disposing of the fund. At the time when the account was opened one of the officials of the bank notified the aunt that, in case of the death of one of the parties, the other could get the money. When they were leaving the bank the aunt remarked to the niece: "Wasn't that a funny remark the clerk made, saying that you could draw the money.

can draw it while I have the book."

I don't see how you
The aunt retained
There were other

possession of the book until her death.

facts indicating that the aunt did not intend to make the

86. 87 Md. 338, 39 Atl. Rep. 1038, (1898).

66

niece a gift of the deposit. It was held that, in spite of the use of the words "joint owners" and survivor," there was no perfected gift in favor of the niece for the reason that there was no intent on the part of the aunt to make a gift.

A gift is not to be presumed from the mere form of the deposit. The evidence must show that the donor intended to divest himself of the deposit, and it should be inconsistent with any other intention or purpose. In the absence of other proof it will be presumed that a deposit in two names is nothing more than an arrangement for the convenience of the depositor.87

On the other hand, where the circumstances indicate that one, depositing money in two names did intend to make a gift, such intent will be recognized.88

§ 24. Joint or alternate deposit as a matter of convenience.-Occasionally a deposit is opened in two names as a measure of convenience in drawing money from the bank. When this appears to have been the depositor's object in opening the account there is, of

87. Matter of Bolin, (1892), 136 N. Y. 177, 32 N. E. Rep. 626, where it was said: "In the absence of other evidence, the transaction simply evidence a purpose of the depositor of the moneys that they should be drawn out by either of the persons named. The only presumption would be that the depositor so arranged for the purposes of convenience." See infra, section 24.

88. Kelly v. Beers, (1909), 194 N. Y. 49, 86 N. E. Rep. 980, where the deposit was entered In account with Kate v. Beers, or Sarah E. Kelly, her daughter, or the survivor of them." It was held that, while the mere form of the deposit would not establish a gift, the form in which the deposit was made, in connection with other evidence of an intent to give, was sufficient to show a gift. See also Dennin v. Hilton. (N. J. 1901), 50 Atl. Rep. 600.