person for him, a complete delivery must be made during the life time of the donor. If A deposits money in the joint names of himself and B, and delivers the pass book to C, saying: "This is B's; I want you to see that he gets it,” there would be a complete and irrevocable gift. If A delivered the book to C, with instructions not to deliver it to B until after A's death, there would be a valid gift, provided A intended the gift to take effect at the time of the delivery, and merely wished to postpone the time when B should come into complete possession and enjoyment of the gift. But A would create no gift at all if he delivered the book to C, to be given to B only in case he survived A, and in such manner that he could at any time request its return from C.

In a case arising in Maine it appeared that one Hodgkins deposited various sums of money in the names of "Dorothy J. Dearborn and Amos C. Hodgkins." A few days before his death he sent for the executor of his will and told him that he had a savings bank book for his sister, Mrs. Dearborn. At that time he delivered to the executor a key to a trunk, which contained all his valuables, except the book in question. After Hodgkin's death the executor found the book and delivered it to Mrs. Dearborn. It was held that there was no gift in favor of Mrs. Dearborn. The depositor intended a gift; but his intent was that it should take effect after his death.100

Where the depositor of money in his name, coupled with that of another person, "payable to either or the survivor," sent word to the other to come and get the pass

100. Augusta Savings Bank v. Fogg, (1890), 82 Me. 538, 20 Atl. Rep. 92.

book, but the depositor died before the intended donee got the book, it was held that there was no gift.101

§ 28. Gift to become effective upon donor's death.In a very large number of instances of the opening of joint or alternate accounts the depositor's object is to arrange his bank deposit so that, upon his death it will pass to the person whom he designates. Thus a depositor will request that his account be changed so as to stand in the names of himself and his son, "payable to either or the survivor." The bank account may be the only property of which he is possessed, and he does not wish to see a great part of it used up in paying the expenses of administration after his death. In the meantime, however, he does not intend to lose control of the deposit. He retains the pass book so that the son cannot draw out any money, and he also retains the right to alter the account at any time by changing the beneficiary, or even by having the money retransferred to his own name. This virtually amounts to the making of a gift, revocable at any time, and, in any event, to take effect only in case of his death. A gift of this kind would violate the statute of wills and would not be valid. It has already been shown that such a gift cannot be made through the medium of a deposit in trust for the intended beneficiary, and it is no more possible to do so by means of a joint or alternate deposit. A gift may undoubtedly be made by a deposit in a joint or alternate account, but, to be valid, it must take effect completely during the lifetime of the donor.

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

This rule has been followed in a number of savings bank

In Schippers v. Kempkes, 103 where the account was entitled "R. Herman or Elizabeth Kempkes," it was said: "Such attempted gifts, donatio causa mortis, are not valid, but are clearly void under the decisions; not, of course, because of the lack of a donative purpose, but because the intent or direction is testamentary in its character, and not made in the manner prescribed in the statute of wills."

A striking example of an attempted testamentary disposition which failed is the case of Main's Appeal, decided in Connecticut in 1901.104 It there appeared that the depositor wished that her money would go to her three daughters after her death. The bank officials told her representative that, while the entries could not be made in the specific language requested by the depositor, the opening of joint accounts would operate to pass the money to the daughters upon the depositor's death. Accordingly three accounts were opened, each one in the name of the depositor and one of the three daughters. When the daughters claimed the money after the death

102. Main's Appeal, (1901), 73 Conn. 638, 48 Atl. Rep. 965; Norway Savings Bank v. Merriam, (1895), 88 Me. 146, 33 Atl. Rep. 840; Bath Savings Institution v. Fogg, (1906), 101 Me. 188, 63 Atl. Rep. 731; Whalen v. Milholland, (1899), 89 Md. 199, 43 Atl. Rep. 45; Taylor v. Henry, (1878), 48 Md. 550; Smith v. Speer, (1881) 34 N. J. Eq. 336; Schippers v. Kempkes, (N. J., 1907), 67 Atl. Rep. 74, aff'd., 72 N. J. Eq. 948, 73 Atl. Rep. 1118; Providence Institution for Savings v. Carpenter, (1893), 18 R. I. 287, 27 Atl. Rep. 337.

103. 67 Atl. Rep. 74, (N. J. 1907), aff'd., 72 N. J. Eq. 948, 73 Atl. Rep. 1118.

104. 73 Conn. 638, 48 Atl. Rep. 965.

of the depositor it was held that no valid gifts had been made. The transaction was an attempted testamentary disposition and was invalid because not made in the form of a will. The court pointed out that the depositor "intended that the deposit should be made in such a way that the daughters would take no interest until their mother's death. That this was the purpose of the transfer was understood by all the parties including the bank officers, and it does not appear that the daughters themselves supposed that it was made for a different purpose. * It was an attempted testamentary disposition of the money and was void because not made in legal form."

There are decisions to be found wherein it has been held that a gift dependent upon the life of the donor is valid.105

§ 29. Joint and alternate accounts wherein parties are husband and wife. For the most part the rules which determine the validity of a gift of a bank deposit apply where the parties interested are husband and wife, but where this relation is found to exist the requirements are in some instances modified.

If a deposit is made without the intent of creating a gift it is held that there is no gift. Thus, where a husband deposits money in the names of himself and his wife, "either to draw," not intending to make a gift of the deposit to the wife, and she obtains the pass book without his consent, there is no gift and the wife gains no

105. See the cases of Blanchard v. Sheldon, (1871), 43 Vt. 512, and Dunn. v. Houghton, (N. J., 1902), 51 Atl. Rep. 71.

interest in the fund.106 And where it appeared that a husband opened an account in the names of himself and his wife, payable "to either or the survivor of either," for the purpose of enabling the wife to draw from the account in case of sickness or necessity, and to vest her with title in case of his death, it was held that there was no valid gift.107

It is held that a gift of a joint deposit in the names of husband and wife is not complete unless there is a delivery and a parting with dominion over the property.108

66

In one case the depositor, upon opening an account in the Rochester Savings Bank, stated that "he wanted it so that either he or his wife could draw the money. The account was opened in their two names, to be drawn by either." The depositor took the pass book and, after. his death, the wife obtained it and drew the money. It was held that she was not entitled to retain it as against the depositor's administrator. Though the depositor intended that his wife should have the money at his death he had misjudged what was necessary to accomplish this result. The transaction was not valid as a gift for the reason that it had not been consummated by delivery. All that the wife received was an authority to draw the money which terminated at the death of the husband.10

109

106. Slee v. Kings County Savings Institution, (1903), 78 N. Y. App. Div. 534, 79 N. Y. Supp. 630.

107. Schneider v. Schneider, (1907), 122 N. Y. App. Div. 774, 107 N. Y. Supp. 792.

108. Schick v. Grote, (1886), 42 N. J. Eq. 352, 7 Atl. Rep. 852; Dougherty v. Moore, (1889), 71 Md. 248, 18 Atl. Rep. 35.

109. Brown v. Brown, (1857), 23 Barb. (N. Y.) 565. See also Matter of Ward, (N. Y., 1876), 51 How. Pr. Rep. 316; Burns v.