stitute a testamentary disposition is held true, even though the beneficial enjoyment thereof is postponed until donor's death.61

The reserved power of revocation does not prevent the transaction from being a completed gift.62

4. Gift in præsenti devesting donor of all beneficial interest.

Where the donor intended to devest himself of the beneficial ownership of the fund during life, and to deprive himself of the right to dispose of it by will, it has been held that there is a gift if the intent has been effectuated by a transfer of the deposit book.63

d. Gifts causa mortis.

A gift causa mortis is not made out where the deposit was not made in view of death.64

III. Trust theory.

It has been stated that the only difference between a gift and a voluntary trust is that in the case of a gift the thing itself passes to the donee, while in the case of a trust the actual, beneficial, or equitable title passes to the cestui que trust, while

61 Kaufman v. Edwards (1921) 92 N. J. Eq. 554, 113 Atl. 598; Commercial Trust Co. v. White (N. J.) supra; CLEVELAND TRUST Co. v. SCOBIE (reported herewith) ante, 182.

62 CLEVELAND TRUST Co. v. SCOBIE (reported herewith).

63 Barstow v. Tetlow (Me.) supra. The gift, however, was finally defeated in this case, on the theory that the donor did not intend to give any present interest.

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

There was held to be no gift causa mortis in Thomas v. Houston (1921) 181 N. C. 91, 106 S. E. 466, under the facts and circumstances set out II. 2, supra.

65 A trust was sustained in Murphy v. Haynes (1923) 197 Ky. 444, 247 S. W. 362, in case of a deposit by a wife of money which had previously been given her by her husband, in an account in her own name, but under an agreement that the account was to remain in the bank until the death of one of the parties, and then was to go

the legal title is transferred to a third person, or is retained by the person creating it to hold for the purposes of the trust. Possession and control in such a case remain with the trustee, but a gift of the equitable or beneficial title must be as complete and effectual in the case of a trust as is the gift of the thing itself in a gift inter vivos.

Where there is a declaration of trust so that the equitable title vests in the cestui que trust and passes beyond the control of the donor, the right of the survivor to the fund will be sustained.65

Some courts have refused to enforce as a trust a transaction intended as a gift, but imperfect for that purpose.66

A contrary theory prevails in some jurisdictions and a trust is sustained, although there is not a sufficient delivery or devesting of the donor's control over the fund to make a valid gift.67 Thus, a trust has been sustained, although it clearly appeared that the intention of the donor was that both donor and donee could draw, and that any balance remaining would go to the donee at the donor's death.68

to the survivor, but providing that it could be checked out by the joint consent of both. This was held to be a valid trust which the wife could not destroy in her lifetime by checking the amount out without the consent of the husband. There being no consent, the husband was entitled to the fund upon the death of the wife.

See annotation in L.R.A.1917C, p. 567, notes 67 et seq., for earlier cases. 66 Howard v. Dingley (1922) 122 Me. 5, 118 Atl. 592.

67

Waters v. Nevis (1916) 31 Cal. App. 511, 160 Pac. 1081; Williams v. Savings Bank (1917) 33 Cal. App. 655, 166 Pac. 366; Halsted v. Central Sav. Bank (1918) 36 Cal. App. 500, 172 Pac. 613; Halsted v. Oakland Bank of Sav. (1918) 36 Cal. App. 816, 172 Pac. 614; Conneally v. San Francisco Sav. & L. Soc. (1924) 70 Cal. App. 180, 232 Pac. 755.

See annotation in L.R.A.1917C. p. 568, notes 79 et seq., for earlier cases.

68 Williams v. Savings Bank (1917) 33 Cal. App. 655, 166 Pac. 366.

Although it is admitted in some cases that the opening of an account in the joint names of the donor and another is evidence of an intention to establish a trust, it is held that such intention may be rebutted.69

Where the only intention of the donor in opening the joint account is to enable the donee to draw the money for the benefit of the donor, the intent to create a trust is rebutted.70

A reservation of the right to receive the interest from the property for the donor's life is not inconsistent with the trust.71

A power of revocation is entirely consistent with the trust; if the power is not exercised during the life of the creator of the trust, the trust is enforceable in favor of the survivor.72

IV. Joint tenancy.

A number of cases seem to regard 69 Coburn v. Shilling (1921) 138 Md. 177, 113 Atl. 761.

70 Ibid.

71 Ladner v. Ladner (1921) 128 Miss. 75, 90 So. 593. In the above case the right of the survivor to the fund represented by a certificate of deposit, which certified that the donor had deposited with the bank a certain amount of money, "payable to the order of Alfred Ladner [the donor] and Alice Ladner Moran [the donee] or either of them or the survivor," was upheld where the donor intended to make the provision for his children. and wanted them to have the property after his death. The bank cashier testified that the donor had the right to draw out the money whenever he wished, but that the children could not do so. He further testified that the donor told him at the time he made the deposit that, when he died, he wanted the children to have the money, but that as long as he lived he wanted to collect the interest on it, and that it was their understanding that he was to keep this money on deposit in the bank and draw on the interest as long as he lived.

72 Ladner v. Ladner (Miss.) supra. See annotation in L.R.A.1917C, p. 570, notes 87 et seq., for earlier cases.

73 Erwin v. Felter (1918) 283 Ill. 36, L.R.A.1918E, 776, 119 N. E. 926; Illinois Trust & Sav. Bank v. Van Vlack (1923) 310 III. 185, 141 N. E. 546;

the right of the survivor to the deposit to be clear if a joint tenancy is created. As stated in the introduction, supra, I., a condition precedent to the existence of a joint tenancy in the cases within the scope of this annotation is a gift or a trust. And the better considered cases so regard the matter. The gift element, however, has in some cases been minimized. If there is a clear intention to create a condition embracing the essential elements of joint ownership and survivorship, the intention will be given effect and the survivor held entitled to the fund.73 If such intent is lacking, and there is no contract, which directs the bank to pay the fund to the survivor, the survivor is not entitled to the entire fund. 73a

Whether a technical joint tenancy is created has been held to be immaChippendale v. North Adams Sav. Bank (1916) 222 Mass. 499, 111 N. E. 371; Perry v. Leveroni (1925) 252 Mass. 390, 147 N. E. 826; Chase v. Smith (1926)

Mass.

452; New Jersey Title & T. Co. v. Archibald

153 N. E. Guarantee (1919) 91 434 (see

N. J. Eq. 82, 108 Atl. further, as to this question, supra, II. 2); Commonwealth Trust Co. v. Grobel (1921) 93 N. J. Eq. 78, 114 Atl. 353 (see supra, II, b); Kaufman v. Edwards (1921) 92 N. J. Eq. 554, 113 Atl. 598; Hahn v. Ironbound Trust Co. (1922) 94 N. J. Eq. 123, 118 Atl. 744; Blick v. Cockins (1916) 252 Pa. 56, 97 Atl. 125.

And see East Rutherford Bldg. & L. Asso. v. McKenzie (1917) 87 N. J. Eq. 375, 100 Atl. 931, dealing with building and loan association stock.

In Hahn v. Ironbound Trust Co. (1922) 94 N. J. Eq. 123, 118 Atl. 744, the signature cards contained the following clause: "Ironbound Trust Co. funds payable to either or the survivor

such moneys are to be drawn by either of us or in the event of death of either to belong to the survivor."

The rule of these cases is approved in Reder v. Reder (1924) 312 Ill. 209, 143 N. E. 418, but in that case the money was contributed by each of the joint depositors-not in equal proportions, however.

Engelbrecht

73a Engelbrecht V. (1926) 323 Ill. 208, 153 N. E. 827.

terial.74 In fact, a joint tenancy cannot be found where the account is in the name of the donor "or" donee.75

In many of the cases in which the so-called "joint tenancy" is involved, the contract by which the joint tenancy is created is emphasized.76 And

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

The right of the survivor to such a fund where a joint tenancy is created has been held to exist notwithstanding a statute abolishing the joint rights and obligations, on the theory that, whether or not a technical joint estate is created by a deposit in such a form, the contract is nct unlawful and will be enforced. Erwin v. Felter (1918) 283 III. 36, L.R.A.1918E, 776, 119 N. E. 926, as explained in Illinois Trust & Sav. Bank v. Van Vlack (1923) 310 Ill. 185, 141 N. E. 546.

The statute governing Illinois Trust & Sav. Bank v. Van Vlack (1923) 310 Ill. 185, 141 N. E. 546, declared that except as to executors and trustees, and except, also, where a will or other instrument in writing expresses an intention to create a joint tenancy in personal property, with the right of survivorship, the right or incident of survivorship as between joint tenants or owners of personal property is abolished, and all such joint tenancies or ownerships shall to all intents and purposes be deemed tenancies in common, but contained a proviso that "when a deposit in any bank or trust company transacting business in this state has been made or shall hereafter be made in the names of two or more persons payable to them. when the account is opened, such deposit or any part thereof or any interest or dividend thereon may be paid to any one of said persons whether the other or others be living or not; when an agreement permitting such payment is signed by all said persons at the time the account is opened, or thereafter, and the receipt or acquittance of the person so paid shall be valid and sufficient discharge from all parties to the bank for any payments so made." This statute was held expressly to reserve the right of survivorship in personal property jointly owned, and to provide particularly for the right of survivorship when a deposit in a bank should be made in the names of two

some of the courts have apparently assumed that the contract with the bank renders unnecessary a consideration of any of the elements of a gift or trust." This theory originated in a decision of the supreme judicial court of Massachusetts.78 That court

or more persons, with an agreement permitting payment to any one of such persons, whether the other is living or not.

75 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.

But in Myers v. Abbott (1926) 98 N. J. Eq. 574, 131 Atl. 514, where an account appeared in the name of "Agnes Roy or Viola Abbott," and where the depositors had signed an agreement as follows: "We hereby agree to the rules and regulations of the above bank. This account and all moneys to be credited to it belongs to us as joint tenants and will be the absolute property of survivor of us; either and the survivor to draw. We do each appoint the other attorney irrevocable with power to deposit in said 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"-there was held to be a form sufficient to create ownership in the survivor.

76 Erwin v. Felter (Ill.) supra; Illinois Trust & Sav. Bank v. Van Vlack (Ill.) supra; New Jersey Title Guarantee & T. Co. v. Archibald (1919) 91 N. J. Eq. 82, 108 Atl. 434. 77 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; Wisner v. Wisner (1918) 82 W. Va. 9, 95 S. E. 802.

The dissenting judge in Rice v. Bennington County Sav. Bank (1920) 93 Vt. 493, 108 Atl. 708, cites the Chippendale Case (Mass.) infra, to the effect that the survivor is vested with title to the bank book and deposit by the contract with the bank, "not by way of gift, but by force of that contract."

78 Chippendale v. North Adams Sav. Bank (1915) 222 Mass. 499, 111 N. E. 371.

Similar language was used in Perry v. Leveroni (1925) 252 Mass. 390, 147 N. E. 826.

In Perry v. Leveroni (Mass.) supra,

sustained the right of the survivor to a fund which had been placed in a joint account by the decedent, where she had gone to the bank with the depositor, and at his request the following words were inserted in each of his books, namely, "Payable also to Abbie Worthington," and "Either party or the survivor of them may draw the whole or any part now or hereafter deposited on this account with interest." After the account had thus been changed, Mrs. Worthington signed the by-laws of the bank and the necessary identification card provided for depositors. The two then went to another savings bank in which the depositor had funds, and had the bank book changed by the insertion after the depositor's name of these words, "May be drawn by his sister Abbie Worthington," and thereupon. the by-laws of the bank and a depositor's identification card were signed by Mrs. Worthington, as in the previous case. After these changes had been made on the deposit books, they were returned to a safe deposit box which the depositor had, and this box was delivered to the bank for safekeeping, with the agreement that both the depositor and his codepositor should have access to it; the depositor kept the key to the box until he died, but the codepositor had a duplicate key. At the request of the depositor a label was prepared and attached to the box, containing the words, "Property of Abbie Worthington." An officer of the bank in which the box was kept, upon being asked by the codepositor whether she ought not to have something to show that the box was hers, gave her a receipt as follows: "Received of Abbie Worthington one small box, tin, locked, to be held for safe-keeping." The theory upon which deposits in two banks were involved, one of which was completed by a joint account entered into, in which both donor and donee signed and delivered to the bank the usual identification card, and the other of which was not so completed and which is discussed infra. The court emphasizes the necessity of the contract, saying that there was a completed contract be

the Massachusetts court sustained the right of the survivor may best be understood by a quotation from the opinion: "The new deposit in the Hoosac Savings Bank, by its terms, was a deposit to be paid during the lives of Williams and of Mrs. Worthington, or either of them, as they should call for the deposit or a part of it, and the balance (not withdrawn during their joint lives) was to be paid to the survivor of them. Such a contract between a depositor or depositors and the savings bank is a valid contract. If Mr. Williams had gone to the savings bank with a sum of money, he could have made such a contract with the savings bank. What took place was the equivalent of that, by reason of a novation with respect to the account theretofore on deposit in Williams's name alone. The case, therefore, which we have to decide, is not a case of an attempted gift of property, but is a case where Williams the depositor, through a novation, had made a new contract with the savings bank, by virtue of which either he or Mrs. Worthington could draw such sums as either in their discretion chose, during their joint lives, and the balance was to be withdrawn by and so was to belong to the survivor." The same holding was made with reference to the deposit in the second bank, which contained no provision as to survivorship as aboveindicated.

After the decision in the Chippendale Case, the Massachusetts court, in two decisions,79 adopted the ordinary theory of gifts, and held that there must be an intention to make a gift of the joint interest in order to vest the survivor with the ownership of the account. The court says of the Chippendale Case that in that case tween the depositor and the bank, assented to by the donee, by which, upon the death of the donor, the donee became the owner of the balance of the deposit.

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

206

it was found as a fact that in making the changes in the bank book and accounts Henry D. Williams intended to give and transfer to his sister, Mrs. Worthington, a joint interest in the same. According to the court in Chippendale v. North Adams Sav. Bank, the master found that Henry D. Williams made the change in the bank book and accounts in both banks "for the purpose of transferring a joint interest in the same to Mrs. Worthington, and that the changes made were in accordance with the customs of said banks for the purpose of making accounts joint so that withdrawals could be made by either party." It thus appears clear that the Massachusetts court has not abandoned the general rule that the effect to be given a joint tenancy in a bank account depends upon the intention of the donor. The extent to which the decisions of this court can be said to have gone is that the creation of a "joint tenancy," or a deposit in this form, is such a delivery as completes the execution of the gift. Or, as expressed in slightly different language, the delivery which must accompany an ordinary gift is rendered unnecessary by the contract by which the bank becomes obligated to both donor and donee. This interother pretation is supported by cases.80

In other words, the act is sufficient if there is a donative intent.8

81

82

can

al

Some statutes provide that when a deposit is made by any person in his name and that of another, and is in form to be paid to either or the survivor of them, such deposit becomes the property of such persons as joint tenants.85

Such a statute has been relied on by some of the cases which have sustained the right of the survivor to the fund. 86

A joint tenancy has been sustained in some cases in which it does not appear that the entire fund belonged to one of the parties.87

Francisco Sav. & L. Soc. (1924) 70 Cal. App. 180, 232 Pac. 755.

87 Crowley v. Savings Union Bank & T. Co. (1916) 30 Cal. App. 144, 157 Pac. 516. The statement signed by the depositors at the time the deposit was opened declared that all money then on deposit, or at any time thereafter deposited, "by or for us or either of us," to the credit of the account, should constitute the joint property of the depositor, "without reference to the original ownership of such money, the act of so depositing said moneys being absolute termination of any original ownership thereof."

W. A. E.