held by an appellate division that this statute was not intended to be an enactment of a new law, but a declaration of an existing law which declares a presumption entirely consistent with the acts of the parties in thus depositing money.32 Before the conclusive presumption of ownership arises, however, the deposit must be made. with the consent of the owners and in the form prescribed by statute.33

A different form of statute prevails in some jurisdictions. In Mississippi, § 3613 of Hemingway's Code 34 declares: "When a deposit has been made or shall hereafter be made in the name of two persons payable to either or payable to either or the surdead. During the lifetime of both of the depositors either one would have the right to establish the real fact, whatever it might be, with reference to the account, and would have the right to bring an action in respect of that. He thus has an opportunity for his day in court, and through him his personal representatives would have their day. The statute may be upheld on another basis. The legislature has the power to limit remedies. Under this statute it may be said that the remedy for a claim that the account is not what it purports to be must be pursued during the lifetime of one of the depositors. It may be construed to be of the nature of a Statute of Limitations. As shown above, this would not be a taking of property without due process of law, because during his lifetime the decedent could have sued with reference to the account. . . . Construing this statute, not as a rule of evidence which would make it repugnant to judicial function to decide issues of fact, but either as a rule of substantive law, or as a limitation of a remedy, the constitutionality of the act cannot be questioned. Although the proof in the case shows, and I shall find, that it was the intention of the decedent, in creating the joint account, to do it for the sake of convenience, and not for the purpose of creating any rights in the defendant, the testimony in that respect cannot avail the plaintiff, and there must be judgment for the defendant."

32 McNett v. Crandell (1916) 172 App. Div. 375, 158 N. Y. Supp. 1020.

In cases in which an intention to

33 McDonald v. Sargent (1923) 121 Misc. 437, 201 N. Y. Supp. 129.

Where the owner of the money directed it to be deposited in joint account merely, and did not direct that it be payable to either of the depositors or the survivor, the deposit is not in the form prescribed by the statute, and is not made conclusive evidence of joint ownership. McDonald v. Sargent (N. Y.) supra. This was held, although the bank had placed the statutory words, "either or survivor may draw," upon the pass book, and it was assumed by the court that there was a technical compliance with the requirement of the banking law. The fact, however, that the depositor did not instruct a deposit in this form, was held determinative, as above stated.

34 As set out in Godwin v. Godwin (1926) 141 Miss. 633, 107 So. 13.

35 Godwin v. Godwin (Miss.) supra. An Ohio statute declaring that where a deposit has been made in any bank, savings bank, etc., in the names of two persons, payable to either or the survivor, such deposit, or any part thereof, or any interest or dividend thereon, may be paid to either of said persons, whether the other be living or not, and the receipt of the person so paid shall be a valid and sufficient release and discharge to the bank for any payment so made, was held to be for the sole benefit of the bank, and did not determine the ownership of the fund. Re Morgan (1918) 28 Ohio C. A. 222.

See annotation in L.R.A.1917C, p. 559, note 33, for earlier cases.

make a gift appears, the question of law arises whether the donor has complied with the requisite forms to effectuate that intention. This leads to the various intentions which may exist in the minds of donors. Such intentions fall into three general classes: First. An intention on the part of the owner that he will retain control over the deposit during his life, but that any balance remaining shall pass to the codepositor upon his death in case of the codepositor's survival. Second. An intention to vest a present interest in the donee while retaining an interest himself, any balance remaining upon the death of either to pass to the survivor. Third. An intention to devest the donor of all beneficial control over the fund, and vest a present interest in the donee. These three classes will be discussed in detail in the order stated.

In some cases, where the owner intended to make a gift, this intention has been given effect, and the survivor vested with the fund, without any discussion of the necessity of delivery, or whether or not a present 'interest was vested.36

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

Regarding the right of the survivor to such a deposit where the donor intended to retain the beneficial inter

36 Re Harrison (1920) 90 L. J. Ch. N. S. (Eng.) 186.

37 McLeod v. Hennepin County Sav. Bank (1920) 145 Minn. 299, 176 N. W. 987 (obiter); Grady V. Sheehan (1917) 256 Pa. 377, 100 Atl. 950; Re Morgan (1918) 28 Ohio C. A. 222; Smith v. Gosnell (1918) 43 Ont. L. Rep. 123; Shortill v. Grannan (1920) 47 N. B. 463, 55 D. L. R. 416.

See annotation in L.R.A.1917C, p. 559, note 34, for earlier cases.

38 Howard v. Dingley (1922) 122 Me. 5, 118 Atl. 592; Battles v. Millbury Sav. Bank (1924) 250 Mass. 180, 145 N. E. 55; Godwin v. Godwin (1926) 141 Miss. 633, 107 So. 13; Commercial Trust Co. v. White (1926) - N. J. Eq. -, 132 Atl. 761.

89 Wolfe v. Hoefke (1923) 124 Wash. 495, 214 Pac. 1047.

40 Morristown Trust Co. v. Capstick (1919) 90 N. J. Eq. 22, 106 Atl. 391,

est in the fund during his lifetime, and intended merely that whatever was left at his (the donor's) death should pass to the donee, there are two theories. The rule sustained by the majority of courts is that the survivor's right cannot be sustained upon the theory of a gift. There is no final act carrying to completion the intention of the donor.37 At least, the survivor's right cannot be sustained where the money is deposited to the credit of the donor "or" donee.38 Where the intent of the owner is merely that the donee shall have the money at some future time, there is no completed gift.39

That there is no effective gift is true, even though the donee is given the privilege of checking on the account.4 40 At least, if the right to check is a privilege to be used only in an emergency; in other words, is a mere power of attorney to be exercised in a reasonable way.4 The fact that the donee has the right to check on the account does not imply that it belongs to him.42

41

That such a deposit does not constitute a gift is especially true if the donor, in addition to reserving the beneficial interest during life, reserved also the right to make a testamentary disposition of the fund.48

When the intent is to dispose of affirmed without opinion in (1919) 91 N. J. Eq. 152, 108 Atl. 926.

See annotation in L.R.A.1917C, p. 560, notes 35–37, for earlier cases.

41 Morristown Trust Co. v. Capstick (N. J.) supra.

42 Wolfe v. Hoefke (Wash.) supra; Re Morgan (1918) 28 Ohio C. A. 222. 43 Barstow v. Tetlow (1916) 115 Me. 96, 97 Atl. 829. In this case the donee had possession of the pass book. The court, after extensively reviewing the evidence, comes to the conclusion that the donor "did not make the joint survivorship deposit with an intent to give Mrs. Tetlow a then joint tenancy and ownership in the fund; on the other hand, we think the evidence justifies the conclusion that neither Mrs. Kent nor Mrs. Tetlow understood that the making of the joint survivorship deposit deprived Mrs. Kent of the beneficial ownership of the fund during her life, or devested her of her

what remains of the account at the donor's death, the gift cannot be sustained, because not made in the form required for testamentary gifts.44 There must be a surrender of control by the donor to effect a gift.45

On the contrary, there has been held to be such a transaction as will vest ownership in the fund in the survivor, although the intent of the donor in making the deposit to the joint account is that the donee shall take by right of survivorship, and there is no intention to make a present gift.45 The supreme court of Michigan says that if the donor "intended, as we beright to make a testamentary disposition of it." One very important fact considered by the court as showing that the original owner did not intend, in making the deposit, to deprive herself of the right to dispose of the funds by will, was that immediately subsequent to the deposit she made a will wherein she assumed to exercise the right to dispose of the deposit as her property.

44 Barstow v. Tetlow (Me.) supra; Howard v. Dingley (1922) 122 Me. 5, 118 Atl. 592; Battles v. Millbury Sav. Bank (1924) 250 Mass. 180, 145 N. E. 55; Morristown Trust Co. v. Capstick (N. J.) supra; Smith v. Gosnell (1918) 43 Ont. L. Rep. 123; Shortill v. Grannan (1920) 47 N. B. 463, 55 D. L. R. 416.

See annotation in L.R.A.1917C, p. 561, notes 41, 42, for earlier cases.

45 Godwin v. Godwin (1926) 141 Miss. 633, 107 So. 13.

In Godwin v. Godwin (Miss.) supra, where there was held to be no gift, the proof showed that the donor applied to his banker for advice as to how he might conduct his bank account so that his wife might have the same at his death, and the banker advised him that if he made the account in the name of "W. F. Godwin or wife," and gave his wife the privilege of checking on it the same as he did, it would become a joint account, and in the event of his death, she could draw the money. The account was accordingly changed to the form above indicated. Other proof in the case showed the intention of the decedent so to arrange this account that the wife could have the same at his death. The wife exercised no act of

lieve she did, in making this change, to so fix the account at the bank that [the donee] would take by right of survivorship, her intent will be given force by the courts," and is not defeated by the fact that she did not intend a present gift inter vivos.47

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

We now come to cases in which it is the intention of the donor to vest a present beneficial interest in the donee. Such an interest may be one of two general kinds: First, it may be the intention of the donor to vest in the donee a present right to draw control over the fund in the bank, and from the time of the arrangement of the joint account until the donor's death he continued to exercise acts of control and ownership of the fund, drawing checks thereon, depositing amounts at different times, and drawing therefrom gifts to his children; the wife had never drawn a check on this fund during his lifetime, or exercised any act of ownership over the fund at all. In denying the completion of the gift, the court says: "However clear the intention of Mr. Godwin that his wife should have this fund, it has been so repeatedly held by this court that there must be a delivery of the property intended to be donated, as to seem not to require an extended review of this question, it is so thoroughly settled. Mr. Godwin did not surrender the control of this account to his wife, but continued up to within a short time of his death to exercise complete dominion over this property, and the wife never exercised any dominion over same until after his death. In this state of the case there was no such delivery and no such surrender of the control of the property on the part of the donor as to constitute a delivery. To say the least, there was only a surrender to the wife of a right to check upon this account."

46 People's State Bank V. Miller (1917) 198 Mich. 783, 165 N. W. 608.

See annotation in L.R.A.1917C, p. 561, notes 43 et seq., for earlier cases.

on the deposit for his (the donee's) use as he desires, while retaining the same right himself. In other words, there is an account with two persons, either of whom may draw for his own personal use and appropriate the money so drawn, whether it is all or a part of the deposit, without accounting to the other for any sum or sums so drawn. Second, it may be the intention of the donor to create a technical joint tenancy, giving to his codepositor an interest in such a tenancy. Unless a technical joint tenancy is created (a matter that will be discussed hereafter) the power still remains in the donor to destroy the beneficial character of the gift by drawing out the entire fund. It is true the donee also has this power, but this does not devest the donor of the power. If, therefore, the general rule applicable to

48L.R.A.1917C, p. 564, note 49.

Assuming that there is an intention to make a gift by the opening of a joint bank account, it is the view of some cases that such a gift is ineffective where the donor never in his lifetime released control and dominion over the deposit. Pearre v. Grossnickle (1921) 139 Md. 274, 115 Atl. 49.

49 McLeod v. Hennepin County Sav. Bank (1920) 145 Minn. 299, 176 N. W. 987; Commonwealth Trust Co. v. Du Montimer (1916) 193 Mo. App. 290, 183 S. W. 1137; Kaufman v. Edwards (1921) 92 N. J. Eq. 554, 113 Atl. 598; Commercial Trust Co. v. White (1926) N. J. Eq. 132 Atl. 761; CLEVELAND TRUST Co. v. SCOBIE (reported herewith) ante, 182; Raferty v. Reilly (1918) 41 R. I. 47, 102 Atl. 711, motion for reargument denied in (1918) — R. I. —, 102 Atl. 963; Marston v. Industrial Trust Co. (1919) R. I. —, 107 Atl. 88.

See annotation in L.R.A.1917C, p. 564, notes 51 et seq., for earlier cases.

There was held to be a valid gift of the joint interest in a certificate of deposit payable to the order of the donor "or" the donee "or the survivor," in Raferty v. Reilly (1918) 41 R. I. 47, 102 Atl. 711, motion for reargument denied in (1918) — R. I. —, 102 Atl. 963, where the donor, prior to the making of the deposit, offered to give the entire sum to the donee, who objected, saying that he did not want it that way, whereupon it was suggested

gifts, that the donor must devest himself of all power over the gift, is to be applied, it seems that the gift in such a case must fail. This is the view of some cases.* 48

But the majority of cases hold that, if the intention of the donor is to vest a present right to share in the deposit, such an act constitutes a gift that can be sustained.49 A present gift is held to be effected by a father depositing in bank on a certificate of deposit a fund to the account of himself and his daughter jointly, with power to either 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.50

Delivery of the pass book into the hands of the donee is not necessary to complete the gift,51 so far as that the amount be put in a joint account as above indicated, and this was done and certificate of deposit was delivered to the donee, who thereafter retained possession of the same. Subsequently some of the money was drawn out by the donor and some by the donee. At each time a sum was drawn out by the donor the donee presented the certificate of deposit, in accord with the rules of the bank. 50 Negaunee Nat. Bank v. Le Beau (1917) 195 Mich. 502, L.R.A.1917D, 852, 161 N. W. 974.

51 CLEVELAND TRUST Co. v. SCOBIE (reported herewith) ante, 182; Marston v. Industrial Trust Co. (R. I.) supra.

The right of the survivor to the fund on deposit has been sustained by virtue of the gift theory, although the donor retained the pass book without the presentation of which there could be no withdrawal. Commonwealth Trust Co. v. Du Montimer (1916) 193 Mo. App. 290, 183 S. W. 1137.

In the subsequent case of Martin v. First Nat. Bank (1921) 206 Mo. App. 629, 227 S. W. 656, there was held to be no completed gift which passed title to the bank deposit to the donee, where the donor executed and left with the bank a writing certifying as follows: "I have this day deposited for use of Mrs. Lydia Martin the sum of to be drawn out only on check signed by J. W. Sulzer' (the donor) and 'Lydia Martin,'" the fact

donee's right of survivorship is concerned.52

But delivery of the pass book to the donee is a factor to be considered.53

The retention by the donor of the pass book is evidence of an intent not to vest a present interest in the donee, but it is not conclusive; the donee may show by other facts and circumstances an intent to make a present gift of a joint interest in the deposit.54

If the donor intended to create a technical joint tenancy giving a joint interest to his codepositor, he has devested himself of sole control over the deposit. He cannot appropriate all or any part of it to his sole benefit; the deposit is thereafter in the joint control of the depositors.5 In the case of a joint tenancy neither tenant can destroy the estate of the other; the effect of a transfer by one alone of his interests is only to create a severance." 56

It is not necessarily inconsistent with the joint control that either of the parties has the right to withdraw funds from the bank, unless it be assumed that the right of either to with draw includes the right to appropriate the amount so withdrawn to his own use. It may be that the one so withdrawing is under obligations to ac

that the check had to be signed by the donor in order to draw on the account was held to make it clear that the donor had not surrendered his dominion over the same.

52 Commercial Trust Co. v. White (1926) N. J. Eq. —, 132 Atl. 761. 53 The fact that the certificate of deposit was delivered to the donee was given some weight in the decision in Raferty v. Reilly (R. I.) súpra.

54 Battles V. Millbury Sav. Bank (1924) 250 Mass. 180, 145 N. E. 55. 55 A joint tenant of personal property has such title thereto that he may maintain an action against a cotenant who sells or destroys the same. Rice V. Bennington County Sav. Bank (1920) 93 Vt. 493, 108 Atl. 708.

56 Morristown Trust Co. v. Capstick (1919) 90 N. J. Eq. 22, 106 Atl. 391, affirmed without opinion in (1919) 91 N. J. Eq. 152, 108 Atl. 926.

57 Battles v. Millbury Sav. Bank (Mass.) supra; McLeod v. Hennepin County Sav. Bank (1920) 145 Minn.

count for the sum so withdrawn to his codepositor. Which of these things was intended in the foregoing cases which sustain the gift is not clear. lt has been stated that there must be a present and perfected gift of a joint interest in the money when it was deposited in the bank, or afterward.57 If there is such an intent it will be

given effect.58 One case 59 indicates that it must be a gift of a technical joint interest, for it is stated that to establish the gift it must be shown that the donor intended to give the donee "a then absolute and irrevocable joint tenancy and ownership in the deposit, thereby devesting herself of all present and future dominion and control of the interest and right so given, and that she made a delivery of the subject-matter of the giftthe joint tenancy in the deposit. But even in this case the court, in further discussing the intention of the donor, requires that it be an intention "to devest herself of the beneficial ownership of the fund during her life, and to deprive herself of her right to dispose of it by will."

A deposit to the joint account with the intent to pass a present interest does not constitute a testamentary disposition. That it does not con

60

299, 176 N. W. 987; Kaufman v. Edwards (1921) 92 N. J. Eq. 554, 113 Atl. 598; Commercial Trust Co. v. White (N. J.) supra.

58 Chippendale v. North Adams Sav. Bank (1916) 222 Mass. 499, 111 N. E. 371; McLeod v. Hennepin County Sav. Bank (1920) 145 Minn. 299, 176 N. W. 987; Kaufman v. Edwards (1921) 92 N. J. Eq. 554, 113 Atl. 598; Commercial Trust Co. v. White (1926) N. J. Eq. —, 132 Atl. 761.

See Raferty v. Reilly (1918) 41 R. I. 47, 102 Atl. 711, motion for reargument denied in (1918) - R. I. —, 102 Atl. 963, supra.

59 Barstow v. Tetlow (1916) 115 Me. 96, 97 Atl. 829.

60 Negaunee Nat. Bank v. Le Beau (1917) 195 Mich. 502, L.R.A.1917D, 852, 161 N. W. 974; Kaufman v. Edwards (1921) 92 N. J. Eq. 554, 113 Atl. 598; Commercial Trust Co. v. White (1926) N. J. Eq. -- 132 Atl.

761.