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(114 Ohio St. 241, 151 N. E. 373.)

that there was a complete gift of a joint interest, though the donor retained the passbook. Commonwealth Trust Co. v. Du Montimer, 193 Mo. App. 290, 183 S. W. 1137.

A niece, on decedent's death, was held vested with the title to decedent's deposit with a savings society which was transferred to a joint account in the names of both parties payable to survivor by decedent's direction; the niece drawing money therefrom thereafter. McCarthy v. Holland, 30 Cal. App. 495, 158 Pac. 1045.

The owner of money has created a joint interest of another in a deposit when it appears to be his intention to divest himself of the exclusive ownership and control and vest such ownership and control jointly in himself and another, with the attendant right of survivorship. Raferty v. Reilly, 41 R. I. 47, 102 Atl. 711; id. — R. I. —, 102 Atl. 963.

An aunt creating with her own money a joint bank account with her niece was held to have made a gift of the money, then on deposit. Kelly v. Woolsey, 177 Cal. 325, 170 Pac. 837.

Where moneys belonging originally either wholly to a mother, or in part to her and in part to her daughter, are deposited by them in a bank in their joint names, and they both sign and deliver to the bank a writing stating that the account and all moneys credited thereon belong to them as joint tenants and are to be the absolute property of the survivor, the moneys remaining on deposit at the mother's death belong to the surviving daughter as constituting a valid gift. New Jersey Title Guarantee & T. Co. v. Archibald, 91 N. J. Eq. 82, 108 Atl. 434, affirming 90 N. J. Eq. 384, 107 Atl.

472.

The deposit in a savings bank by one to the joint account of himself and another operates as a present and complete gift in joint ownership, if depositor clearly intended such result. Battles v. Millbury

Sav. Bank, 250 Mass. 180, 145 N. E. 55.

A depositor caused a savings bank account standing in his name to be changed so as to stand in the joint names of himself and wife, for the purpose of giving her the same control over the deposit as himself, and notified her of what he had done, and why he did it. Held, this was a fully executed gift to the wife. Griffith's Estate, 1 Lack. Leg. News, 311.

Where the decedent, who had had a bank account in his own name, changed the same to a joint account for himself and wife, the transaction must be deemed donative in character. Re Lydig, 113 Misc. 263, 184 N. Y. Supp. 542.

In Kennedy v. McMurray, 169 Cal. 287, 146 Pac. 647, Ann. Cas. 1916D, 515 (supreme court of California, Feb. 11, 1915), the court held that a joint ownership, with the incident of survivorship attaching as a matter of law, may be created in a bank deposit by agreement between donor and donee.

These holdings apply irrespective of the fact that the power of revocation is retained, as it was in this. case by the party who creates the joint interest. Kaufman v. Edwards, 92 N. J. Eq. 554, 113 Atl. 598.

A gift of a savings bank deposit is none the less a gift because a power of revocation is retained by the donor in his lifetime and enjoyment is postponed until his death. Dunn v. Houghton, N. J. Eq., 51 Atl. 71; Raferty v. Reilly, supra; Battles v. Millbury Sav. Bank, supra.

These holdings also apply even in the case where the bank book has been retained in the possession of the donor. It may be observed that the instant case is stronger upon the facts than the holdings here quoted, for in this case it is conceded that Green gave possession of the bank book to the bank and received therefor a receipt, which was found among his effects by the administrator. Hence a fair presumption arises upon the record that

Green deposited his book with the bank to facilitate the making of withdrawals by his sister, Annie Richardson. In other words, Green has done everything in his power to create a joint interest in his sister, equal to his own, consummating the transaction by delivering the pass book to the bank where his sister might have equal access thereto.

However, the authorities do not ground their conclusions upon the proposition that the bank book must be left in the possession of a third party in order to create a joint interest in the deposit in a transaction of this kind. It is generally held that delivery of a bank book is not a prerequisite to the creation and transfer of a joint title in a savings deposit. Marston V. Industrial Trust Co. - R. I. —, 107 Atl. 88. A deposit of money in bank to the credit of the depositor or his wife, "or the survivor of them," operates as a gift to the wife, though she never had possession of the passbook. McElroy v. Albany Sav. Bank, 8 App. Div. 46, 40 N. Y. Supp.

422.

The retention of a savings-bank pass book, after an agreement with the bank that a donee thereof should have whatever balance might be left on the death of the depositor, does not affect the donation, which was completed when the contract right was vested in the donee; the bank book having been retained in order that the donor might exercise her rights in respect to the debt due from the bank. Dunn v. Houghton,

supra.

Certain cases hold that a trust is established under these circumstances and that the bank is trustee for the donee. This is the ground of the decision in Booth v. Oakland Bank of Sav. 122 Cal. 19, 54 Pac. 370, a well-considered case, which holds that a trust is created where one having a deposit in a savings bank stated to its teller that she wanted it so either of her two sisters could, in the event of her death, draw the money without probate proceedings, and thereupon gave an order to the bank to pay to either of

them or herself, and furnished their signatures, and the bank added their names to the passbook and in like manner changed the account on the ledger.

However, we prefer to place our holding upon the ground above indicated. After all, upon deposit of an account the bank is constituted a debtor, and when the depositor orders the bank to pay himself or another upon order of either party, notifies the second party of the completed transaction, and secures her signature evidencing assent to the arrangement, and notifies her of the completed transaction, he has created in the second party by contract a joint interest in his right to the deposit equal to his own.

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of

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effect.

In this view of the case it makes no difference that prior to the creation of the deposit in question Green had opened a joint account at the same bank for himself and his sister, Florence Desmond, and had later terminated that particular joint account. Reserving, as he did, the right to close such account, he was only acting pursuant to the contract when he terminated his sister Florence Desmond's right to withdraw, and was equally within his rights when he reopened the account in the name of himself and Mrs. Richardson. The joint interest created by the opening of such an account was always subject to the right of the person who opened the account to terminate and revoke the authority to withdraw. In the case of the Desmond account this right was exercised. Not being exercised before Green's death in the case of the Richardson account, Mrs. Richardson was entitled to possession and ownership of the balance of the deposit as against the administrator.

Judgment of the Court of Appeals reversed.

Marshall, Ch. J., and Jones, Matthias, Day, and Kinkade, JJ., concur.

Petition for rehearing denied April 13, 1926.

ANNOTATION.

Gift or trust by deposit of funds belonging to the depositor in a bank account in the name of himself and another.

[Cotenancy, § 9; Gift, § 16; Trusts, § 13.]

I. Introductory, 189.

II. Gift theory:

a. Existence of gift dependent upon owner's intent, 191.

b. Rule where only the fact of the deposit to joint account appears, 191.

c. Rule where owner intended to make a gift:

1. Introductory, 197.

2. Gift to take effect at owner's death, 198.

3. Gift in præsenti while retaining an interest in donor, 199.

4. Gift in præsenti devesting donor of all beneficial interest, 202. d. Gifts causa mortis, 202.

III. Trust theory, 202.

IV. Joint tenancy, 203.

1. Introductory.

The earlier cases on this question are discussed in the annotations in L.R.A.1917C, 550, and Ann. Cas. 1916D, 520. Only the cases decided since the earlier of the above annotations will be discussed herein.

The forms in which the deposits discussed in this annotation are made are varied, as will appear. Some of them are simply in the name of the depositor "and" another; others in the name of the depositor "or" another. Words of survivorship frequently appear. The annotation is intended to cover these deposits, in whatever form they are made. Such deposits are very frequently spoken of as joint deposits. The term "joint deposit" is not used, however, in the technical sense which would exclude the right of either of the depositors to appropriate part or all of the deposit to his own use. Where the deposit is expressly made payable to either or the survivor, it is not necessary to establish the existence of a technical joint tenancy to create the right of survivorship; in other words, the incident of survivorship which exists by implication in a joint tenancy is expressly provided for by such a form of deposit.

1See First Nat. Bank v. Lawrence (1924) 212 Ala. 45, 101 So. 663, for a case in which the money belonged to both.

The annotation has been confined to cases in which it appeared that the money in question belonged entirely to one of the depositors,1 in so far as any difference of decision results from this fact. It has been stated to be immaterial whether the moneys belonged, originally, wholly to one of the depositors, or in part to one and in part to the other.2 But in a subsequent case3 in the same jurisdiction, the court regards the fact that the moneys involved therein were deposited in the account of both parties as making the case "unique," although it does not appear that it considers this fact as calling for a different decision from that in a case where the money belonged wholly to one of the parties. A difference in principle exists, however, between a case in which the money belongs wholly to one of the parties, and a case in which it belongs in part to each. In the latter case there is a consideration for the agreement of each to place. it in the joint account which is lacking where the money belongs wholly to one of the parties.

Where money belonging to one person is deposited to the account of himself and another, or where money

2 New Jersey Guarantee & T. Co. v. Archibald (1919) 91 N. J. Eq. 82, 108 Atl. 434.

3Kaufman v. Edwards (1921) 92 N. J. Eq. 554, 113 Atl. 593.

deposited by the owner to his own account is changed to the account of himself and another, several questions arise. First, there is the question as to the rights and liabilities as between the depositors and the bank. Second, there is the question of the rights of the depositors as between themselves. This latter question is the subject of investigation in this annotation.

The effect of so depositing money to the account of the owner and another, so far as the rights of the depositors as between themselves are concerned, cannot be stated in any general way. The question has arisen in nearly every instance over the right of the one other than the original owner to the fund, upon the death of the original owner. In such a case it must be remembered that the funds in question originally belonged to the decedent. If the survivor is entitled thereto, the property must have passed somehow from the decedent to the survivor. There is no claim of a valuable consideration for the transfer in the cases within the scope of this annotation. This leaves the title of the survivor to rest upon a gift, trust, or bequest. The bequest drops out of consideration, because it is not claimed that the transfer is in the requisite form to constitute a valid bequest; i. e., there is no compliance with the Statute of Wills. There thus remain

4 It has been held that a bank which issued a certificate of deposit certifying that "W. A. B. or J. G. B." deposited in the bank a certain sum of money, "payable to either order" on the return of the certificate properly indorsed, was not justified in paying the amount thereof to the donee, after the death of the donor, on the theory that under the circumstances there was a mere power of attorney to withdraw the money, which was revoked by the death of the principal. Smith v. Planters' Sav. Bank (1922) 124 S. C. 100, 117 S. E. 312.

5 Deal v. Merchants & M. Sav. Bank (Parrish v. Merchants & M. Sav. Bank) (1917) 120 Va. 297, L.R.A. 1917C, 548, 91 S. E. 135.

6 The supreme court of appeals of West Virginia in Wisner v. Wisner (1918) 82 W. Va. 9, 95 S. E. 802,-cit

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two theories, upon one or the other of which the right of the survivor to the fund must be based; i. e., gift or trust. Unless the survivor can show title in one of these ways, his claim must fail.

There is language used in some cases, which, on its face, negatives the necessity of any gift or trust in order to vest the survivor with the fund in such a case. For example, the supreme court of appeals of Virginia 5 said that "no question of gift or trust arises in determining the rights of the parties" under a deposit to the credit of the depositor or another. Other cases 6 are to the same effect. The Virginia court places reliance upon a decision of the Massachusetts court in which similar language was used. From other cases in Massachusetts, however, it is clear that there must be an intention to make a gift in such a case, and doubtless all that the court meant in the Chippendale and Leveroni Cases was that the contract with the savings bank, by which it agreed to pay to either or the survivor, took the place of the delivery which must ordinarily accompany a gift, in order to complete it.

Further discussion of this theory appears in subd. IV., infra.

Some cases 9 have sustained the right of the survivor to the fund without any clear reason being given.

8

ing the Chippendale Case (Mass.) infra, note 7; Blick v. Cockins (Pa.) infra, note 20; and Deal v. Merchants & M. Sav. Bank (Va.) supra, note 5,says that in those cases "the right of survivorship in joint estates, created and evidenced by joint deposits like the one involved here, was distinctly upheld, not upon the theory of a valid gift inter vivos, but by virtue of the contract of deposit."

7 Chippendale v. North Adams Sav. Bank (1916) 222 Mass. 499, 111 N. E. 371. Similar language is used in Perry v. Leveroni (1925) 252 Mass. 390, 147 N. E. 826.

8 Bradford v. Eastman (1918) 229 Mass. 499, 118 N. E. 879; Battles v. Millbury Sav. Bank (1924) 250 Mass. 180, 145 N. E. 55.

9 The right of the survivor to money evidenced by a certificate of deposit

II. Gift theory.

a. Existence of gift dependent upon owner's intent.

It is a general rule applicable to gifts that there must be an intention to make one, and a delivery of the subject of the gift with the intention to part with dominion and control over it. It may be stated by way of introduction that there are two theories as to whether a deposit in the form considered in this annotation constitutes a gift. All cases considering the gift theory recognize that there must be an intention on the part of the owner to make a gift. Beyond this, the courts do not agree. In some cases the intention to make a gift is supplied by a presumption from the form of deposit; others deny that there is any presumption of gift from the form of deposit. But assuming that there is an intent to make a gift, according to one line of authorities, a deposit in the form mentioned does not meet the technical requirements as to delivery and surrender of dominion essential to the completion of the gift, within the rule as stated above. The gift is sustained by the other line of authorities in a majority of cases without reference to the technical requirements as to completion, except the most general statement that there is a completed gift. These theories will now be discussed in detail.

Although in many of the cases in this subdivision there is held to be no gift, so that the depositor is not, accurately speaking, a "donor," nor his codepositor a "donee," those terms will be used throughout the subdivision for the sake of brevity.

As stated above, a condition precedent to the existence of a gift is an intention on the part of the donor

which recited the deposit of money by the donor and donee, and made it payable to either or the survivor, was sustained in Compton v. Hendricks (1923) 154 Ga. 808, 115 S. E. 654.

10 Bradford v. Eastman (Mass.) su

pra.

See Engelbrecht v. v. Engelbrecht (1926) 323 III. 208, 153 N. E. 827 infra, note 73a.

The necessity of intent to make a

to make one. If there is no such intention, the survivor is not entitled to the fund on the theory now under discussion.10 For example, the donee acquires no ownership in the fund, or any part thereof, where the only purpose of creating the joint account was to enable the donee to draw funds for the benefit of the donor.11

And there must be something done by way of delivery. It is stated in one case,12 "while it is true that the courts have relaxed somewhat the rigor of the old rule as to delivery, they have never departed from the rule that something more is requisite to constitute a gift than the expression of an intent or purpose to give." And further this court says: "The donor must not only signify his purpose to give, but he must deliver. The delivery must be made

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with the intention on the part of the donor that title to the subject-matter of the gift shall pass immediately, and it must be so full and complete that if he resumes control over it, without the consent of the donee, he will be answerable in damages as a trespasser."

b. Rule where only the fact of the deposit to joint account appears. The intention of the owner of money in depositing it in a joint account is, of course, a question of fact where there is evidence as to the intention. In many cases, however, there is no such evidence, and it is then necessary to determine the rights of the survivor from the fact of a deposit in this form. The rule sustained by a majority of cases is that the mere fact that money is deposited to the account of the owner "and" another, or the owner "or" another, does not show an intent to make a gift.13 And

gift is emphasized also in McLeod v. Hennepen County Sav. Bank (1920) 145 Minn. 299, 176 N. W. 987. This intent must be to make an actual present gift of an interest in the deposit. 11 Bradford v. Eastman (Mass.) supra.

12 Rice v. Bennington County Sav. Bank (1920) 93 Vt. 493, 108 Atl. 708. 13 Commercial Trust Co. v. White (1926) —— N. J. Eq. — 132 Atl. 761.

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