The opposite view is also taken and it is held that a deposit by a husband in the names of himself and his wife imports a gift to her and vests title in her though the pass book is not delivered to her. In a New York case it was said: "I think it is within the authorities to say that where a husband deposits his money in a savings bank in his name and that of his wife with the account' payable to either or the survivor,' as was the case here, the account on its face imports a gift to her and that she has such an interest in it as gives her the equal right with him to draw it during their joint lives and vests her with its absolute title in case she survives him."110

It has been held that a husband cannot make a gift of a deposit in favor of his wife, which is to take effect only upon the death of the husband. One of the depositors in the Pennsylvania Railroad Employees' Savings Fund, in opening his account, requested "that in the event of my death all deposits standing to my credit in said savings fund, and all interest thereon, shall be paid to my wife." He delivered the pass book to his wife and explained how she could get the money in case of his death. It was held that she was not entitled to the money on his death. There was no valid gift because he had retained dominion and control of the deposit and the intended gift was to take

Burns, (1903), 132 Mich. 441, 93 N. W. Rep. 1077; Denigan v. Hibernia Savings & Loan Society, (1899), 127 Cal. 137, 59 Pac. Rep. 389; Denigan v. San Francisco Savings Union, (1899), 127 Cal. 142, 59 Pac. Rep. 390.

110. Moore v. Fingar, (1909), 131 N. Y. App. Div. 399, 115 N. Y. Supp. 1035. See also Platt v. Grubb, (1896), 41 Hun (N. Y.) 477; McElroy v. National Savings Bank, (1896), 8 N. Y. App. Div. 192, 40 N. Y. Supp. 340; Estate of Griffiths, (Pa., 1895), 1 Lack. Leg. N. 311.

effect only upon his death. In the opinion it was said that to hold such a method of disposing of property valid would be to practically repeal the statute of wills in its operation upon personal property, so far as its mandatory provisions are concerned.11

This, also, has been decided otherwise and in a New York case it was held that a deposit by a husband in the names of himself and his wife, in the absence of a contrary intention, creates a right of survivorship in the wife, although the husband retains the bank book and makes withdrawals.112

In this case the fact that the pass-book had never been delivered to the wife was one of the grounds upon which the appellants, who represented the estate of the deceased husband, claimed that there had been no gift to the wife. In a carefully prepared brief, filed in this case on behalf of the appellants, which was written by Mr. Frank A. Gaynor, a member of the New York bar, it was pointed out that by virtue of the modern statutes, sweeping away the disabilities of married women, which existed at common law, husband and wife now deal as strangers with each other with reference to personal property. It was urged, therefore, that a gift of a savings bank account from husband to wife is not complete without a delivery, such as is required where the parties are not joined by the ties of marriage. The point seems well taken.

Even admitting that a deposit by a husband, in the names of himself and his wife, raises a presumption that

111. Stevenson v. Earl, (1903), 65 N. J. Eq. 721, 55 Alt. Rep. 1091.

112. West v. McCullough, (1908), 123 N. Y. App. Div. 846, 108 N. Y. Supp. 493; aff'd., 194 N. Y. 518, 87 N. E. Rep. 1130.

he intended a gift to the wife, there seems to be no sound basis for holding that such a gift is complete without delivery. The law requires a delivery in other cases and a gift is not declared to exist in the absence of delivery, although it positively appears that the donor intended a gift. The rule should be the same where the parties are husband and wife.

Where a husband, in making a deposit in the names of himself and his wife, so intends, an estate by the entirety may be created, entitled the wife to the entire deposit. upon the death of the husband. In one such instance it appeared that the money belonged to, and was deposited by the husband in an account entitled "William E. and Julia A. Bradley." The husband died, and the wife some time later. The administrator of the husband and the administrator of the wife opposed each other in claiming the deposit. The wife's administrator claimed that the deposit created an estate by the entirety and that it passed to the wife as the survivor. The husband's administrator claimed that estates by the entirety had been abolished, in effect, by the enactment of the married women's statutes which, in a property sense, disunite husband and wife. But the court held that estates by the entirety still exist in Missouri, as at common law.

As to the nature of an estate by the entirety, it is an interest in property owned jointly by a husband and wife, which on the death of one, passes to the survivor. Estates of this character are not recognized in all of the states. Where it does exist a conveyance to a husband and wife creates an estate in entirety. But in some states such

an estate is not created unless expressly stated in the instrument.

In the present case it was held that whether the deposit by the husband created an estate by the entirety depended upon the intention of the depositor. The mere opening of the deposit, it was said, was not conclusive, but had a favorable bearing on the question in the wife's favor. It was held that the circumstances justified the presumption that the husband, in making the deposit, intended that his wife, if she survived him, should have the entire deposit. The administrator of the wife was accordingly adjudged entitled as against the husband's administrator." 113

§ 29. Right of bank to pay joint and alternate deposits. During the life time of both parties to a joint or alternate deposit, the bank may pay either party in accordance with the rules of the bank, unless there is different stipulation in the contact of deposit. And where the deposit is in such form that the survivor is entitled to the deposit the bank may pay the survivor. But, if the bank pays after notice by one of the parties, or some one representing one of the parties, not to pay, it pays at its own risk and if the bank in such case pays a party not legally entitled, it may be compelled to pay over again at the instance of one properly entitled.114

However, the fact that a bank is protected in paying in 113. Craig v. Bradley, (Mo., 1911), 134 S. W. Rep. 1081. See also Parry's Estate, (1898), 188 Pa. St. 33, 41 Atl. Rep. 448.

114. Metropolitan Savings Bank v. Murphy, (1896); 82 Md. 314, 33 Atl. Rep. 640; Mulcahy v. Devlin, (N. Y. 1886), 2 City Ct. Rep. 218; Whitlock v. Bowery Savings Bank, N. Y. Daily Reg., Nov. 22, 1883; Grafing v. Irving Savings Institution, (1902), 69 N. Y. App. Div. 566, 75 N. Y. Supp. 48.

good faith, under the circumstances stated, does not mean that the party so paid is necessarily entitled to retain the money. His rights depend upon the rules governing these deposits already set forth.

In a number of states there are statutes, the general purport of which is that a bank may pay a deposit, standing in two names, to either person, whether the other be living or not. 115

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