joint account a statement is signed to the effect that the parties own the funds deposited as joint tenants, and that the moneys are to become the absolute property of the survivor, and declaring that either party and the survivor may draw, there is held to be evidence of a donative purpose.19 On the contrary, a writing signed by the donor that in case of the death of either of the depositors the survivor should have full power to withdraw the deposit as if the same had been duly transferred to such survivor, and further declaring the do

19 New Jersey Guarantee & T. Co. v. Archibald (1919) 91 N. J. Eq. 82, 108 Atl. 434; Commonwealth Trust Co. v. Grobel (1921) 93 N. J. Eq. 78, 114 Atl. 353; Commercial Trust Co. v. White (1926) N. J. Eq. - 132 Atl. 761.

The Commonwealth Trust Co. v. Grobel (1921) 93 N. J. Eq. 78, 114 Atl. 353, the funds deposited were derived from a business in which the donor and donee worked together. At the time of the deposit there was imprinted with a rubber stamp upon the deposit book, in plain view, the words, "As joint tenants and not as tenants in common, the survivor to take." The parties also signed and delivered to the trust company a memorandum in the following words: "This account is opened by us and intended to create a joint estate to us as joint tenants and not as tenants in common."

Accounts in four different institutions were involved in Commercial Trust Co. v. White (N. J.) supra. In the first a signature card contained the following: "Either signature to draw. This account is opened by us and intended to create a joint estate to us as joint tenants and not as tenants in common." On the cover and on an inside page of the pass book were written the names, "John J. Bullis or Lettie A. Dath." Under this, in both places were stamped the words, "As joint tenants, and not as tenants in common." And on the cover and inside the book, but separate from the other words, were stamped the words, "Either signature to draw." The second account was originally opened in the name of the donor alone; later the name of the donee was added; a new signature card was then made out, on which appeared the following: "This account and all mon48 A.L.R.-13.

nor's intention that, in the event of his death, the codepositor should have full power unconditionally to withdraw the balance of the deposit, and absolutely possess and retain it for her own use and benefit, was held not to evidence an intention to give a present interest, but only one to make a gift in the nature of a testamentary disposition.20

The

Other cases hold that the mere fact that a joint account is opened by the donor, without any further explanation, indicates an intention to make a gift.21 Some cases limit the preey to be credited to it belong to us as joint tenants and will be the absolute property of the survivor of us; either and the survivor to draw. We do each appoint the other attorney irrevocable with power to deposit in said joint account, moneys of the other and for that purpose to indorse any check, draft, note or other instrument payable to the order of the other." pass book showed it was issued in the name of the donor "or" donee, "either and the survivor to sign." The third account was opened in the names of the donor "or" the donee. Their signatures appeared below an agreement which in effect stated that they had deposited the sum with which the account was opened, and that they requested the bank to open an account with them in their names; that they were the joint owners of the money deposited and thereafter to be deposited, and of the interest accruing thereon; that upon the death of either the moneys then on deposit should become the property of the survivor, and that each or the survivor might at any time draw against the account. The pass book was issued in the names of the donor "or" the donee, "payable to either or survivor." The fourth account was opened in the names of the donor "and" the donee. The signature card signed by them contained the following: "This account and all money to be credited to it belong to us as joint tenants and will be the absolute property of the survivor of us; either and the survivor to draw upon producing consent of any public officer required by taxation laws."

20 Grady v. Sheehan (1917) 256 Pa. 377, 100 Atl. 950.

21 See L.R.A.1917C, p. 556, notes 20 et seq.

sumption of a gift to cases in which the joint tenants are husband and wife, or parent and child.22

A statute has been enacted in some jurisdictions, providing that when a deposit shall be made in any bank or trust company by any person in the name of such depositor or any other person, and in form to be paid to either or the survivor of them, such deposits thereupon, and any addition thereto made by either of such persons, upon the making thereof, shall become the property of such persons as joint tenants, and the same, together with all interest thereon, shall be held for the exclusive use of the persons so named, and may be paid to either during the lifetime of both, or to the survivor after the death of one of them, and such payment, and the

In an English case the deposit by a father in the joint names of himself and a child, to be paid to the survivor, was held to raise a presumption that the child was to take beneficially if she survived her father, and to rebut the ordinary presumption of a resulting trust for the owner. Re Warwick (1912) 56 Sol. Jo. (Eng.) 253 (Parker, J.).

The brief statement in Blick v. Cockins (1916) 252 Pa. 56, 97 Atl. 125, may reasonably be construed as indicating that the Pennsylvania supreme court was of this opinion. But the decision of the next year, in Grady v. Sheehan (Pa.) supra, expressly takes the opposite view, and holds that the mere fact that the deposit is placed in a joint account is not evidence of intention to give.

The right of the survivor to such a deposit has been sustained where a joint account was created, without reference to the intent of the donor, aside from the creation of the joint account. Commonwealth Trust Co. v. Du Montimer (1916) 193 Mo. App. 290, 183 S. W. 1137. The court here makes no point of the intention of the donor. Aside from the fact that the donor changed the account to a joint account, there was no evidence of his intention, except such as might be inferred from a statement printed on the reverse side of a card sent to his codepositor for her signature, to the effect that it was desired to open an account in their joint names, "payable

receipt or acquittance of the one to whom such payment is made, shall be a valid and sufficient release or discharge to said bank for all payments made on account of such deposits prior to the receipt by said bank of notice in writing not to pay such deposits in accordance with the terms thereof. Under such a statute it has been held that, where there is a joint deposit by a person of his funds in the name of himself or another, either, or the survivor, a presumption arises that the deposit became the property of the depositors as joint tenants, and, in the absence of competent evidence to the contrary, actually fixes the ownership of the fund in the persons named as joint tenants with the attendant right of survivorship.23

to either or the survivor

and

we agree that we are and shall be joint owners of all money deposited or which may thereafter be deposited to the credit of said account and that upon the death of either of us, the moneys then on deposit to the credit of said account shall become and be the property of the survivor and we are mutually agreed and hereby notify said trust company that each or either of us or the survivor of us may at all and any times withdraw and receive from said trust company the whole or any part of said moneys now deposited or which may be hereafter deposited to the credit of said account."

22 L.R.A.1917C, p. 556, notes 21 et

seq.

23 Re Rehfelds (1917) 198 Mich. 249, 164 N. W. 372; Powell v. Pennock (1917) 198 Mich. 573, 165 N. W. 799; People's State Bank v. Miller (1917) 198 Mich. 783, 165 N. W. 608 (see infra, II. 3, b); Re Sadler (1918) 201 Mich. 281, 167 N. W. 861; Re Taylor (1921) 213 Mich. 497, 182 N. W. 101; Wright v. Smith (1926) 235 Mich. 509, 209 N. W. 576; Havens v. Havens (1925) 126 Misc. 155, 213 N. Y. Supp. 230, affirmed in (1925) 215 App. Div. 756, 213 N. Y. Supp. 818.

See also Ludwig v. Bruner (1918) 203 Mich. 556, 169 N. W. 890, where the account was made up of moneys contributed by both depositors.

See annotation in L.R.A.1917C, p. 558, notes 28 et seq.

Obviously, where the presumption is aided by the evidence, the right of the survivor is still clearer.24

Such statutes, being in derogation of the common law, are strictly construed.25 The form of the deposit must be in strict conformity with that described in the statute, or the statute will not apply; it must be in form

24 Havens v. Havens (N. Y.) supra. In Negaunee Nat. Bank v. Le Beau (1917) 195 Mich. 502, L.R.A.1917D, 852, 161 N. W. 974, there was evidence of an intent to make a gift by a father who deposited in a bank a fund to the account of himself and his daughter jointly, the certificate of deposit giving either the power to draw on his or her individual order during their joint lives, and the balance upon the death of either to belong to the other; but the court said that, apart from this evidence, the writing indicated an intent on the part of the father to create in his daughter a present estate in the fund equal to his own, together with the sole right to said fund in case of his death.

There is held to be a valid gift in Re Delmore (1916) 174 App. Div. 99, 160 N. Y. Supp. 62, where a depositor transferred her accounts to herself and daughter, or the survivor. The exact form of the deposits was, first, "Mary A. Delmore, Mary F. McGiff, to be drawn by either or the survivor;" second, "Mary A. Delmore and daughter Mary F. McGiff or either and survivor;" and third, "Mary Delmore or daughter Mary F. McGiff or the survivor." The testimony is not set out, but it is stated to have established the gift, and it is added that the account vested in the survivor by virtue of the above statute.

25 Re Tripp (1923) 206 App. Div. 61, 200 N. Y. Supp. 881.

26 Hayes v. Claessens (1919) 189 App. Div. 449, 179 N. Y. Supp. 153, same case on subsequent appeal in (1922) 202 App. Div. 762, 196 N. Y. Supp. 312, which is affirmed in (1922) 234 N. Y. 230, 137 N. E. 313.

In Re Tripp (N. Y.) supra, the donor, who was ill and confined to her bed, a few weeks before she died, handed to her nephew, the donee, a savings bank pass book, with a note addressed to an official of the bank, reading as follows: "Dear Sir:-Kindly make my nephew my survivor of what I have in this book and oblige,

to be paid to either, or the survivor of them.26

There is some dispute as to whether the statute applies to accounts opened before the adoption of the statute. In so far as such statute announces a rule of evidence, it applies to deposits made before, as well as after, its enactment.27 But it has been held gen

Very sincerely, Elizabeth B. Fonda, Milton P. Miller, Nephew." The nephew was directed to deliver the pass book and note to the official, who, contrary to instruction, wrote on the bank book after the name "Elizabeth B. Fonda," the words, "or Milton P. Miller." The pass book was handed back to the nephew, who delivered it to his aunt, by whom it was ever after retained until her death. The aunt was dissatisfied with the action of the bank official, saying to him, "Isn't there some stamp or something you put on the book, making it payable to either?" The official replied that there was, and subsequently stamped upon the book, "Pay to either or the survivor of either." In holding no gift was created under the statute, the court states that the first writing upon the pass book, to wit, "Elizabeth B. Fonda or Milton P. Miller," was not in a statutory form; that the second writing, "pay to either or the survivor of either," closely approximated that form, but was not the precise form chosen by the depositor. She inquired if there was not some stamp which would make the deposit payable to either, and said she wanted it that way, and said nothing about inserting the words "or the survivor of either," which are an essential part of the statutory form.

The New York statute relates to deposits in the names of depositor and another person, "and in form to be paid to either or the survivor of them." This statute was held not to apply to a deposit account taken out prior to the enactment of the statute, and not in such form as the statute specifies, the account being simply "C. A. R. and J. M. R.," without statement of its being payable to either or the survivor of them. Re Mt. Vernon Trust Co. (1916) 175 App. Div. 353, 161 N. Y. Supp. 1060, affirmed without opinion in (1918) 223 N. Y. 563, 119 N. E. 1061.

27 Marshall v. Marshall (1926) 217 App. Div. 229, 216 N. Y. Supp. 673.

erally that such a statute does not apply to an account opened before its adoption.28

The presumption created by a statute in the form above set out may be rebutted.29 Some statutes, however, make the deposit in this form conclusive evidence of joint ownership. A New York statute relating to savings bank deposits, which has been before the courts of that state, declares: "The making of the deposit in such form shall, in the absence of fraud or undue influence, be conclusive evidence, in any action or proceeding to which either such savings bank or the surviving depositor is a See McNett v. Crandell (1916) 172 App. Div. 375, 158 N. Y. Supp. 1020.

28 In Re Spaulding (1920) 112 Misc. 317, 183 N. Y. Supp. 144, a deposit made in the name of "Louis W. Spaulding or Charles Spaulding," before the enactment of the above statute, was held not governed thereby.

See Re Mt. Vernon Trust Co. (N. Y.) supra, note 26.

29 Re Taylor (1921) 213 Mich. 497, 182 N. W. 101; Re Buchanan (1918) 184 App. Div. 237, 171 N. Y. Supp. 708; Re Tripp (1923) 206 App. Div. 61, 200 N. Y. Supp. 881.

30 Re Buchanan (1918) 184 App. Div. 237, 171 N. Y. Supp. 708.

31 Heiner v. Greenwich Sav. Bank (1922) 118 Misc. 326, 193 N. Y. Supp. 291. And see McDonald v. Sargent (1923) 121 Misc. 437, 201 N. Y. Supp. 129.

The supreme court, in Heiner v. Greenwich Sav. Bank (N. Y.) supra, says: "The only case found which considers the question raised by this amendment is Re Buchanan (N. Y.) supra. Mr. Justice Henry T. Kellogg discusses the question in light of what is said by Wigmore, in his book on Evidence (§ 2492), that there cannot be such a thing as a conclusive presumption, and that the statute really creates a rule of substantive law. Upon that basis the learned justice concludes that the deceased depositor has been deprived of his property without due process of law. He refers to a case of a thief who deposited the stolen moneys in the specified form, and states that undef a statute he would be the owner of the fund upon the death of the real owner, because there would be no fraud or undue in

party, of the intention of both depositors to vest title to such deposit and the additions thereto in such survivor." Banking Law, § 249. The appellate division held in one case 30 that if this statute were construed to foreclose all inquiry as to facts, and were regarded as a substantive rule of law, it would be invalid; accordingly, it was construed as creating only a rebuttable presumption. But a different conclusion was reached by a trial court in another case, and the statute held valid, even construing it as a substantive rule of law; accordingly, it was held conclusive of the survivor's rights.31 And it has been fluence. Reference is also made to a case where the owner sent another to deposit his moneys in a savings bank, and the attorney innocently deposited them in joint account for himself and the owner. It is urged that in such a case, under the statute, the real owner, without consenting thereto, in part, loses title to his property. It seems to me, in testing the constitutionality of an act, the spirit, and not the letter thereof, must be taken into consideration. The legislature, in my opinion, intended that the form was only conclusive evidence as to accounts opened with the intention of the owner or owners of the money. The provision should not be deemed to include accounts otherwise opened. I think this is shown by the exclusion of accounts in connection with which there has been fraud and undue influence. Many acts held to be constitutional might have been held to be unconstitutional upon the basis of supposititious fanciful facts not within the spirit of the act. But even in the two cases mentioned by the learned justice, it seems to me that there would be a fraud within the spirit of this act. For the thief to claim as his own that which belonged to another, or for a trustee to claim moneys which belonged to another, would be in the nature of fraud. The same would apply to any account not opened with the consent of the owner. It seems to me, therefore, that if this statute be construed as a rule of substantive law, it does not deprive a party of his property without due process of law. The provision is not altogether clear, but refers, I think, exclusively, to an action where one of the parties named in the account is