course, no gift, for the object is inconsistent with the existence of a gift and clearly indicates that the intent to make a gift is lacking.89

90

In the case of Taylor v. Henry 90 one Joseph Henry, being about to depart upon a voyage for his health, opened an account in the names of himself and his sister, as follows: "Joseph Henry, Margaret Taylor, and the survivor of them, subject to the order of either." After his death Margaret obtained the book from his trunk, where it had been kept, and drew the money from the bank. Joseph Henry had made a will in which he made legacies amounting to $1300.00 and the only property against which the will could operate was the deposit standing in the name of the testator and his sister. It was held that the effect of the deposit depended upon the intent of the depositor, as gathered from the form of the deposit and all the surrounding circumstances. The court came to the conclusion that the deposit was nothing more than a device to subserve the convenience to the depositor, and that the sister was simply constituted an agent with power to draw the money from the bank to meet an emergency in case one should arise during his absence from home.

§ 25. Joint or alternate deposit for purpose of increasing amount on deposit. In a Massachusetts case it was found that the object of the depositor in opening a

89. Taylor v. Henry, (1878), 48 Md. 550; Matter of Bolin, (1892), 136 N. Y. 177, 32 N. E. Rep. 636; Taylor v. Coriell, (1904), 66 N. J. Eq. 262, 57 Atl. Rep. 810; Skillman v. Wiegand, (1896), 54 N. J. Eq. 198, 33 Atl. Rep. 929.

90. 48 Md. 550, (1878). See also Wood v. Zornstorff, (1901), 59 N. Y. App. Div. 538, 69 N. Y. Supp. 241.

joint account was to increase the amount which she might be permitted to deposit in the bank. The deposit was made in the following terms: "Margaret McCormick and Ellen Dockery, payable to either or the survivor." At the time the account was opened it appeared that Margaret McCormick, the depositor had on deposit in the bank all that any one individual was allowed to deposit. It was held that the depositor never intended any gift to Ellen Dockery and that, therefore, there was no gift.91

§ 26. Necessity of delivery to complete gift.-No matter what language may be inscribed in the books of the bank, or upon the pass book, in opening an account in two names, the transaction cannot constitute a gift unless there be a delivery. To make such a gift perfect and complete there must be an actual transfer of all right and dominion over the thing given, and an acceptance by the donee, or some person competent to act for him. If the depositor retains the right to draw and use the fund there is no delivery and there is, therefore, no gift.92

91. Cogswell v. Newburyport Inst. for Savings, (1896), 165 Mass. 524, 43 N. E. Rep. 296.

92. Norway Savings Bank v. Merriam, (1895), 88 Me. 146, 33 Atl. Rep. 840; Augusta Savings Bank v. Fogg, (1890), 88 Me. 538, 20 Atl. Rep. 92; Taylor v. Henry, (1878), 48 Md. 550; Gorman v. Gorman, (1898), 87 Md. 338, 39 Atl. Rep. 1038; Whalen v. Milholland, (1899), 89 Md. 199, 43 Atl. Rep. 45; Noyes v. Institution for Savings, (1895), 164 Mass. 583, 42 N. E. Rep. 103; Matter of Bolin, (1892), 136 N. Y. 177, 32 N. E. Rep. 626; Schwind v. Ibert, (1901), 60 N. Y. App. Div. 378, 69 N. Y. Supp. 921; Flanagan v. Nash, (1898), 185 Pa. 41, 39 Atl. Rep. 818; Woonsocket Inst. v. Heffernan, (1897), 20 R. I. 308, 38 Atl. Rep. 949; Pope v. Burlington Bank, (1884), 56 Vt. 584.

An account was opened in the following terms: "Elizabeth O'Neill and Mary Whalen; payable to the order of either or the survivor." The account was opened by Elizabeth O'Neill and she retained possession of the bank book until her death. After the account was opened the words "joint owners were added after the name of Mary Whalen by the bank, the bank having adopted that form for its joint accounts. It was held that the form of the account did not operate to establish a gift in favor of Mary Whalen, in the absence of delivery to her. Nor did the words "joint owners," even if added with the consent of the depositor, have that effect. A delivery of the pass book, with the intent to make a gift, was requisite to the consummation of a perfect gift, and without such delivery the donee could claim no interest in the deposit.93

In a similar case, arising in Pennsylvania, it appeared that one Bridget Gallagher opened an account in the Beneficial Savings Fund Society of Philadelphia in the joint names of herself and James Nash. On the margin opposite the signatures the words "either to draw" were entered by the treasurer of the association. A book was given to the depositor with the following words stamped upon it: "Either party to draw, and in the case of the death of either of them, the survivor shall have full power to withdraw the deposit as if the same had been duly transferred to such survivor." After the death of the depositor, Nash drew out the balance on deposit. It was held that the estate of the depositor could compel him to refund the amount drawn. There was no gift for the reason that there had been no delivery. The de

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

positor retained the right to draw the money up to the time of her death and title thereto always remained in her. 94

Even in a case where the account is opened in the names of two persons, "or their survivor in joint tenancy," it is held that there is no valid gift for the reason that the depositor retained the pass book during her lifetime.95

Where there has been a delivery of the pass book, representing an account in two names, by the person opening the account to the person named as co-owner, with the intent to make a gift, it is held that the gift is complete and valid.96

In some instances, however, the court seems to have found that a gift was made, although there was no delivery to the donee. In one such case the depositor opened a savings bank account in the names of herself and her niece, payable" to either or the survivor of either" At the time of opening the account she signed the following form provided by the bank:

"Oct. 7th, 1897.

"The Treasurer of the Albany County Savings Bank will please add the name of my niece, Huldah B. Hallenbeck, as owner and creditor with me of all moneys heretofore or which may hereafter be deposited in said bank under its account No. 12413, together with all the interest which has been or may hereafter be credited to the said account, with full

94. Flannagan v. Nash, (1898), 185 Pa. St. 41, 39 Atl. Rep. 818. 95. Norway Savings Bank v. Merriam, (1895), 88 Me. 146, 33 Atl. Rep. 840.

96. Dennin v. Hilton, (N. J. 1901), 50 Atl. Rep. 600.

authority for each or either of us, or the survivor of us, to draw out from the said bank the whole or any part of such moneys or such interest.

It was here held that the form of the deposit gave the niece prima facie title, and that, before this could be destroyed, there would have to be a finding that the change in the account was made for some purpose other than to pass title, as, for example, for the convenience of the original depositor in drawing. 97

In New Jersey it has been held that where a person deposited money in two names, nothing further was required to complete the gift, although the depositor retained possession of the pass book.98

In a Connecticut case it was said that, where a joint deposit is made with the intent of vesting a joint interest in the joint depositor immediately, the gift will not fail because the depositor retains possession of the pass book. In such a case the possession of the depositor is regarded by the court as the possession of one joint owner for both.99

§ 27. Delivery must be made during lifetime of donor. -While delivery of the pass book, to effectuate a gift of the deposit represented by the book, need not be made directly to the donee, but may be made to some other

97. Hallenbeck v. Hallenbeck, (1905), 103 N. Y. App. Div. 107, 93 N. Y. Supp. 73.

98. Dunn v. Houghton, (N. J. 1902), 51 Atl. Rep. 71.

99. Main's Appeal, (1901), 73 Conn. 638, 48 Atl. Rep. 965.