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(108 A.)

deposit book to Mrs. Tetlow soon after the de-, written as it was did not authorize Hawks posit was made, and the latter retained pos- to deliver it and the book to the claimant for session of it ever after. In Trust Co. v. Scan- the purpose of passing title thereto to the lon the deposit was in the names of "Patrick claimant. They belonged to Houghton, reScanlon or Dennis F. Scanlon, and payable gardless of the phraseology of the order. He to either or the survivor of them." The do- had paid for them with his property. They nor delivered the book to the donee, "saying were his property, in another form, as much that it was his to do with as he pleased; as the house, which he gave in exchange for that he could draw the whole or any part as them, had previously been. They were his, he wished; and that he must go to the bank and not Hawks' to give. The fact that the next day to sign the book." From that Hawks saw them in the hands of the claimtime the book remained in the donee's posses- ant after they were placed on the table is sion, except on two occasions when the donor of no force under the circumstances of the drew small sums from the bank with the con- case. The claimant was present as the attorsent and at the request of the donee. In ney of Houghton to attend the execution of Raferty v. Reilly, 41 R. I. 47, 102 Atl. 711, the papers necessary to complete the transanother Rhode Island case, decided in 1918, action. The transfer of the bank deposit was John Henry made a deposit and took a cer- part of the transaction, and the claimant tificate payable "to the order of John Henry would have been remiss in the performance and Edmund Reilly or the survivor," and de- of his duty to his client had he failed to livered the certificate to Reilly, who retained make such examination of the papers that it to the time suit was brought, after the evidenced the transfer of this deposit as was death of Henry. Henry was allowed to draw necessary to satisfy him of their validity. part of the deposit, but Reilly always went to Neither does the bare fact that the book and the bank with him and retained complete order were later seen in his possession tend possession of the certificate. The delivery to show a delivery. It did not appear when, shown in each of these cases was sufficient by what means, or for what purpose they to pass title to the entire deposit. Watson came into his possession. He did not attempt v. Watson, 69 Vt. 243, 39 Atl. 201; Good- to exercise any act of ownership over them rich v. Rutland Savings Bank, 81 Vt. 147, while in his possession-to draw the deposit 69 Atl. 651, 17 L. R. A. (N. S.) 181. The or have it transferred on the books of the donor divested himself of all control, both bank-and returned them to Houghton in present and future, over the same. a short time.

[4, 5] The burden is with the claimant to establish that there was a gift. Meyers v. Albert, supra; 20 Cyc. 1219; 12 R. C. L. 971; In re Bolin, supra. The form in which the order was drawn does not import a gift, and, standing alone, is not evidence of one. Schick v. Grote, 42 N. J. Eq. 352, 7 Atl. 852; Taylor v. Henry, 48 Md. 550, 30 Am. Rep. 486; Denigan v. San Francisco Savings Bank, supra; In re Bolin, supra; Schneider v. Schneider, supra.

It may be conceded that the relations between these parties, and the financial condition of Houghton, was such that a gift in præsenti, or by will, by him to the claimant, would not have been considered an unnatural act on his part. ral act on his part. The fact that Houghton directed the order to be made as it was may be considered as tending to show a then intention that the claimant should have part or all of the deposit, sometime, but when? Immediately, or upon the death of Houghton? The fact that the deposit was never transferred on the books of the bank and that Houghton retained possession and absolute control of both the book and the order to the time of his death, except for the short period when the claimant's evidence tended to show them in the latter's possession, would seem to indicate the latter. In our judgment the evidence does not tend to show a donative intention on the part of Houghton to create a gift in præsenti, nor does it tend to show a valid delivery.

[6, 7] What took place at Houghton's house at the time the papers passed did not tend to show a delivery to the claimant. On direct examination speaking of the order and deposit book, Hawks testified, "I gave them to on the table to Uncle Richard and Charles Maurer," and on cross he said that he "delivered them to Uncle Richard Houghton." It is apparent that what he actually did was to leave them on Houghton's table, and that what he said about who he delivered them to was a mere inference on his part. But suppose that, instead of placing It is said by the claimant that it has been them on the table, Hawks had actually de- the practice in this state for many years livered them to the claimant, but with no to transfer deposit books. by order like the authority for so doing except the language one before us, and that this is provided for of the order, which is all that appears in by G. L. 5376. Whatever the purpose or scope this case. No one would seriously contend, of this statute, neither its provisions, nor any we apprehend, that that would constitute practice that we are aware of relating to the such a delivery by Houghton as the law re- transfer of bank deposits, have relieved a quires to create a valid gift. The mere fact party claiming a deposit by gift from provthat Houghton had requested the order to being the facts necessary to constitute a gift.

The claimant attempts to distinguish this case from cases found in the books, on the ground that in those cases the deposit in controversy originally stood in the name of the alleged donor while here it stood in the name of Hawks. The only importance that the court in those cases attached to the fact that the deposit originally stood in the name of the donor was to show that he was the sole owner of the deposit at the time of the alleged gift. The fact that the deposit in this case stood in the name of Hawks, at the time the order was given, does not affect the situation. The deposit, as we have already said, belonged to Houghton. It is not claimed that it ever belonged to the claimant prior to the execution of the order.

The claimant further contends that the order created a joint interest in the deposit in Houghton and the claimant, with the incident of survivorship, and that a delivery of the bank book and order by Hawks to either was in legal effect a delivery to both, and that the claimant's rights in the deposit were fixed when the book and order were delivered by Hawks, whether to Houghton or the claimant.

This position is untenable. For reasons already stated, the claimant has no better right to this deposit than he would have, had the money been handed to the bank officials by Houghton and an account opened in the names of Houghton and the claimant, as di

rected in the order.

In Staples v. Berry, 110 Me. 32, 85 Atl. 303, money belonging to Fred E. Savage was deposited to "Nellie A. Savage and Fred E. Savage, may be drawn by either in any event." The deposit book was in their joint possession most or all of the time, each having access to it. Fred died, and the widow claimed the deposit as surviving joint tenant. Touching this question, the court said:

"It is laid down by all the authorities that there are four essential characteristics of a joint tenancy; unity of interest, unity of title, unity of time and unity of possession. * * Unity of title means that the interests must accrue by one and the same conveyance; and unity of time that the interests must commence at one and the same time. * *This would seem to contemplate conveyance or devise by A., the sole owner, to B. and C., as joint tenants, not as splitting up of A.'s ownership so that B. becomes a joint tenant with A. But granting for the sake of argument that this might be done by carefully worded conveyance, it can hardly be said that this naked book entry meets the requirement which is so jealously guarded by the law, and that is the only evidence in the case to disclose the husband's intention. In the third place, a joint tenancy implies that the interests of the joint holders remain the same until death, and then that the survivor takes all. Here, according to the book entry, either party could at any time withdraw the entire deposit, so that the joint property would be dis

This is utterly at variance with the attributes of a joint tenancy."

It was held that a joint tenancy was not established.

[8] The claimant in this case concedes that Houghton during his lifetime could have drawn and used the money on deposit, and it is not suggested that he would have been liable to the claimant had he done so. This is inconsistent with the claim that they were joint tenants in this deposit. 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. Lewis v. Clark, 59 Vt. 363, 8 Atl. 158; Wilson v. Reed, 3 Johns. 175; Hyde v. Stone, 9 Cow. (N. Y.) 230, 18 Am. Dec. 501; Farr v. Smith, 9 Wend. (N. Y.) 338, 24 Am. Dec. 162; Lucas v. Wasson, 14 N. C. 398, 24 Am. Dec. 266; Agnew v. Johnson, 17 Pa. 373, 55 Am. Dec. 565.

[9, 10] Moreover, the phraseology of the order does not import a joint tenancy, or joint interest. The language is "Richard M. Houghton or" etc.; not Richard M. Houghton "and." While courts have construed "or" for "and," and vice versa, where such construction was necessary to carry out the manifest intention of the parties, such construction has never been resorted to for the purpose of supplying an intention not otherwise appearing.

[11] The provisions of G. L. 5376 are for the protection of the bank paying money to persons named in deposits made in the manner specified in the statute, and do not change or affect the title to such deposit.

The plaintiffs' motion should have been granted.

[12] The plaintiffs excepted to the failure of the court to comply with that part of their third request which is as follows:

sential to the perfection of such gift; for when "Complete and unconditional delivery is esthe donor retains dominion over the property there can be no legal and perfected donation. There must be a parting by the donor of all present and future legal power and dominion over the property."

While the court did not follow the language of this request, an examination of the entire charge shows that the subject was fairly dealt with, and therefore the exception is without merit.

[13, 14] The plaintiffs excepted to the failure of the court to comply with their fourth request which was as follows:

"While a gift from a client to an attorney during the relation is not void ipso facto, it is viewed by the courts with the greatest suspicion."

This request calls for a statement of an abstract proposition of law without reference

(108 A.)

the case on trial. While the statement em- [ could be done, and, pursuant to his advice, bodied in the request is to be found in some the assignment was made as we find it. It of the books, the cases show that, where this is pertinent to inquire what was Houghton degree of suspicion has been cast upon the transaction under consideration, something more appeared to create suspicion than the mere fact that the alleged donee was attorney for the alleged donor. The nature of the gift, its value, the wealth of the donor, and other things, are to be considered in determining the degree of suspicion. Could it be said that a trivial gift by a wealthy client should be viewed with the greatest suspicion? We think not. The plaintiffs were not entitled to have this bald proposition stated to the jury. To the charge on this subject, as given, no exception was taken.

POWERS, J. (dissenting). I am wholly unable to agree with the conclusions reached by the majority. At the outset, I am impressed with the fact that we have here an attempted donation, natural and meritorious, to which all persons in any way concerned have agreed; one that is in no way contrary to public policy; one wholly free from the taint of fraud or evil purpose. In these circumstances, and in the absence of a binding decision of our own, I would not allow a pure technicality to thwart so worthy a purpose. I would decline to follow such courts as refuse to effectuate a donative intention so unmistakably manifested. But it is not necessary to disregard the precedents in order to deal justly between these parties; for, as I shall attempt to show, my views are sustained both by reason and the weight of authority.

trying to do when he had the assignment made as it was and the fund made ultimately payable to the survivor? There is absolutely nothing to indicate that the arrangement was made for the convenience or to subserve any purpose of the donor. Every circumstance is corroborative of the purpose expressed in the order-save, possibly this one. The majority say that Houghton kept the book. Assuming this to be so, the fact, in so far as it was entitled to any probative force, tended, it may be, to show that he did not intend a present gift; beyond this, the fact is without the slightest significance.

My reference to the circumstances is not to be taken as an admission that it was necessary to supplement the order itself with further proof in order to make the case for the jury on the question of donative intent. The order on its face imports a joint ownership with the right of survivorship. Erwin v. Felter, 283 Ill. 36, 119 N. E. 926, L. R. A. 1918E, 776; Kelly v. Beers, 194 N. Y. 49, 86 N. E. 980, 128 Am. St. Rep. 543, and was enough to send the case to the jury on that question.

As I have said, I agree that every gift implies a delivery, or what amounts to that. But it is not every gift that requires a hand to hand delivery-the manual tradition of the common law. All that is required is such a consummation as the character of the subject-matter of the gift admits. Just what physical facts are required to effectuate a donative intent depends upon the char

I agree that the arrangement here in ques-acter of the thing given. When the thing tion is, in essence, a gift. I agree, too, that given is corporeal property, a physical deevery gift involves a donative intent, and a livery, actual or constructive, is required.. delivery-or what in law amounts to that. But we are not here dealing with a transfer I agree that, speaking broadly, the general of corporeal property; we are dealing with rule is correctly stated in the majority opin- the transfer of incorporeal property—a conion. But that this rule stands between this tract right, a chose in action. We commonclaimant and the benefaction intended for ly speak of the passbook as representing a him, I deny. We must remember that the "deposit" in the bank, as though certain case below stood on a motion for a verdict, specific funds could be demanded under it. and the judgment was for the claimant. To But as the cases show, our language is figsustain this judgment (the other exceptions urative. What the book represents is a credaside) we need only find evidence in the rec-it-a right to demand and receive a sum owed ord fairly and reasonably tending to establish the facts essential to the claimant's title.

The holding of the majority is that there is no evidence in the record tending to show (1) an intent to make a gift in præsenti, or (2) a delivery of the thing given.

The undisputed evidence is that, when Hawks asked Houghton how he would have the transfer of the passbook made, he replied that he wanted the book made payable to himself or Charles Maurer or the survivThereupon the advice of the treasurer of the bank was sought as to how this could be accomplished. Mr. Dewey told how it

or.

by the bank. The book is not even a contract in the full sense of the term. Talcott v. First National Bank, 53 Kan. 480, 36 Pac. 1066, 24 L. R. A. 737 and note. It is a mere written admission as to the state of the account. Moreover, the subject of this gift is not the thing itself, but a joint interest in the thing. The character of the subjectmatter of the gift is such that, necessarily, the donor retains as much as he transfers. He cannot exclude himself from "all" control over the fund, for then the title would not be joint. But he excluded himself from all control over the interest he gave away.

The majority say that the gift of a sav

ings bank deposit requires a delivery. That it requires what amounts to a delivery, I agree. They cite Maryland and New Jersey cases in support of this proposition. That the law of Maryland is with the majority, as is the law of Maine, I have no doubt. In these states a delivery of the passbook is required to make the gift of the deposit complete. But the law of New Jersey is with me, and a delivery of the passbook is not required. Dunn v. Houghton (N. J. Ch.) 51 Atl. 71. In this case is to be found a very intelligent and instructive discussion of this whole subject by Vice Chancellor Stevenson, which is well worth reading. His conclusion is that in the case of joint deposits no actual delivery of anything to the donee is required, because the absolute undertaking of the bank to pay the donee takes the place of delivery.

In Dennin v. Hilton (N. J. Ch.) 50 Atl. 600, though the book was delivered to the donee, Vice Chancellor Pitney says, in speaking of a joint deposit made by a decedent:

"She vests the right to demand that money in herself and Captain Hilton, jointly. This is delivery, so to speak."

In East Rutherford Savings, Building & Loan Ass'n v. McKenzie, 87 N. J. Eq. 375, 100 Atl. 931, the title to certain building and loan association certificates and a passbook of installment shares therein was in question. Old certificates and an old passbook, both standing in the name of the owner, were surrendered by him, and new ones were issued to himself and wife, with a provision for survivorship; he took and retained the new certificates and passbook. Vice Chancellor Howell recognizes the fact that a donative intent must in such cases, appear, and says that a delivery, or what amounts to delivery, must be shown; and that the donor must rid himself of all control of the subject-matter of the gift. But he concludes that the transaction showed "a delivery of the subject-matter of the gift within the requirements of the law on the subject." There was evidence that the donee acquired possession of the certificates and book before the donor's decease. But the Vice Chancellor disregards this fact, and puts the decision squarely upon the ground that, "by virtue of the transaction above recited [the transfer], the title to said shares and passbook and the fund represented by them vested in Mr. and Mrs. McKenzie as joint tenants" on the date of the surrender of the old papers and the issuance of the new ones. This opinion of the Vice Chancellor was so satisfactory to the Court of Errors and Appeals that the decree in favor of the surviving wife was affirmed for the reasons therein stated, without further opinion.

Reference is made by the majority to cer

they recognize the necessity of delivery. True, but that court does not sustain the majority by holding that a delivery of the passbook is necessary. On the contrary, they hold that a delivery of the passbook is not necessary. In Whitehead v. Smith, 19 R. I. 135, 32 Atl. 168, a father deposited money to the credit of himself or his daughter, payable to either or the survivor. It was held that the deposits became the joint property of the parties during their mutual lives, and passed immediately to the daughter upon the father's death.

The last word of that court on this subject was spoken in Marston v. Industrial Trust Co. (R. I.) 107 Atl. 88. Laura C. Marston had a deposit in her own name. She directed the trust company to change the account to "Laura C. Marston or George S. Marston, payable to either or to the survivor." Mr. Marston never had possession of the bank book. It was held that a delivery of the book was not a prerequisite to the creating and passing of a joint title in the deposit, and that Mr. Marston took the same by right of survivorship. The court said that when it is clear that the parties intended to create a joint account, "so that both of the parties have an equal right to draw on the funds, it is immaterial which holds the book."

A delivery of the passbook is not required in Connecticut. Appeal of Buckingham, 60 Conn. 143, 22 Atl. 509; Candee v. Connecticut Sav. Bank, 81 Conn. 372, 71 Atl. 551, 22 L. R. A. (N. S.) 568. It was held in Main's Appeal. 73 Conn. 638, 48 Atl. 965, that the gift failed because it was considered that the arrangement was an attempted testamentary transfer but the court said that, if it had been the intention of the depositor "that a joint interest with herself in the money should immediately vest in her daughters, the gift would not have failed because she retained. possession of the bank books. Her possession as a joint owner would have been regarded as the possession of the other joint owners."

A delivery of the passbook is not required in Illinois. In Erwin v. Felter, 283 Ill. 36, 119 N. E. 926, L. R. A. 1918E, 776, a person deposited her own money in a bank, and took out certificates running to herself "or Mrs. Martha D. Erwin, or the survivor of either," which certificates were not delivered to Mrs. Erwin, but were left with the bank under a receipt running to the depositor. Upon the death of the latter, it was held that Mrs. Erwin took the funds by right of survivorship.

A delivery of the passbook is not required in Pennsylvania. In re Parry's Est., 188 Pa. 33, 41 Atl. 448, 49 L. R. A. 444, 68 Am. St. Rep. 847, involved the title to a letter of credit purchased with the husband's money, but running to himself and wife. There was nothing to show that the letter was ever de

(108 A.)

"We are clear the writings created an estate, as between husband and wife, by entireties, and such an estate, at common law, goes to the survivor. This estate may be created in a chattel as well as realty; in a chose in action and one in possession."

In Blick v. Cockins, 252 Pa. 56, 97 Atl. 125, the ownership of certain bank balances stand ing in the names of a man and his wife was involved. These balances were "subject to the order of either or survivor." Much of

the money deposited was that of the wife, but the president judge of the common pleas, whose opinion was adopted as the opinion of the supreme court, said that fact made no difference; that the wife had the right to give property over to herself and husband as joint owners; and that "the deposit of it in this way" had that effect. The title to the surviving husband was sustained.

In Michigan a delivery of the passbook is not required. In Negaunee Nat. Bank v. Le Beau, 195 Mich. 502, 161 N. W. 974, L. R. A. 1917D, 852, a father deposited his money in the name of himself and daughter, with a provision that each might draw therefrom "during their joint lives, and that any balance upon the death of either shall belong to the survivor." The father retained the passbook. The daughter survived him, and it was held that she was entitled to the fund. It appeared in that case that the daughter came into possession of the passbook before the father's death. But the court did not consider this fact, saying:

"It is not necessary to predicate determination upon the fact that the passbook prior to the death of Euchrist Le Beau was in the possession of the donee, and to draw an inference from that possession that the same was given to her by her father in his lifetime with the intention of giving her the fund represented thereby. He had already given her the fund by his unequivocal act at the moment the deposit was made."

A delivery of the passbook is not required in California. In Kennedy's Adm'r v. McMurray, 169 Cal. 287, 146 Pac. 647, Ann. Cas. 1916D, 515, a deposit was made in the name of a father and daughter, with a provision that the sums so deposited should be "joint as to time, title and possession," and should be payable to either of them. The title to the surviving daughter was upheld, and the court said that the fact that the father retained exclusive control of the passbook during his lifetime did not affect the result.

I am not so sure of the law of New York or Missouri. I do not find a decision of the court of last resort in either state. In the former, there is some confusion in the decisions of the inferior courts. But in McElroy v. National Sav. Bank, 8 App. Div. 192, 40 N. Y. Supp. 340, a husband made a deposit to the credit of himself and wife, with a provision

that either or the survivor might draw; and it was held that the gift did not require a delivery of the passbook to complete it. In West v. McCullough, 123 App. Div. 846, 108 N. Y. Supp. 493, a husband opened a savings bank account in the name of himself and wife, and it was held that the latter acquired a right of survivorship. The court said that at common law a husband could, by making a deposit or taking a security in the name of himself and wife, create a right of survivorship in the wife; and that the transaction was not strictly a gift inter vivos or causa mortis, and that delivery was "neither necessary nor practical."

In Commonwealth Trust Co. v. Du Montimer, 193 Mo. App. 290,-183 S. W. 1137, it was held that, when a deposit was made in a savings bank in the name of the depositor and another, there was a complete gift of a joint interest therein, though the depositor

retained the passbook.

Other cases reject the doctrine that the transaction is a gift. In Deal's Adm'r v. Merchants' & Mechanics' Sav. Bank, 120 Va. 297, 91 S. E. 135, L. R. A. 1917C, 548, a de cedent deposited money to the joint account of herself and sister. In holding that the surviving sister took the fund, the court put its decision on the ground of the contract entered into by the bank when it accepted the deposit, saying:

"It was a pure contractual relation, and no question of gift or trust arises in determining the rights of the parties under such a contract."

In Chippendale v. North Adams Savings Bank, 222 Mass. 499, 111 N. E. 371, it was held that, where a depositor provided that funds theretofore standing in his name should be paid during the joint lives of himself and sister to either of them, and what remained, to the survivor, the contract with the bank vested title to the bank book and deposit in the sister after the depositor's death—not by way of gift, but by force of that contract.

Our own cases are in entire accord with the reasoning of these cases. While we treat such transactions as gifts, we treat the contract as the basis of the right. In Howard, Adm'r, v. Windham County Savings Bank, 40 Vt. 597, one deposited money to the credit of another and took and retained the passbook. This court held that a gift was thereby perfected. But where was the delivery? The answer is simple enough: There was nothing to deliver. The bank by accepting the deposit in the name of the donee became the debtor of the donee. The rights of the donee vested at once, and the engagement of the bank took the place of and was equivalent to a delivery of the thing given. "The bank," says Judge Wilson, "in virtue of the deposit, had the right to regard Adaline F. Brown [the donee] as the depositor and legal owner of the money. The transaction constituted

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