The Law Concerning Certificates of Deposit is the subject of a note to Hillsinger v. Georgia R. R. Bank, 75 Am. St. Rep. 43. That a Vendor of Goods cannot, on the Ground of Fraud, recover possession of them without the return or tender of the amount received on account of the sale, see Adam etc. Co. v. Stewart, 157 Ind. 678, 87 Am. St. Rep. 240. A vendor, who seeks to have a contract of sale set aside upon the ground of fraud, must offer to return the purchase money in order to put the purchaser in statu quo: Cowan v. Fairbrother, 118 N. C. 406, 54 Am. St. Rep. 733. But if he is entitled to rescind for fraud, he does not waive his right by demanding payment of the purchase price: Pelham v. Chattahoochee Grocery Co., 146 Ala. 216, 119 Am. St. Rep. 19. That a vendor of goods cannot maintain an action for the price while the possession remains in him, see McCormick etc. Machine Co. v. Balfany, 78 Minn. 370, 79 Am. St. Rep. 393. BOWEN v. CLEMENS. [161 Mich. 493, 126 N. W. 689.] LEASE-Rent After Destruction of Premises.-Where a lot with the building thereon is leased for saloon purposes, the lessor covenanting for a quiet enjoyment and the lessee to keep the premises in repair, and the building is destroyed by fire before the expiration of the term, the lessor may recover the insurance and the stipulated rent for the period after the fire, the lot being larger than the building and it being possible for the lessee to rebuild without trespassing. (p. 522.) Assumpsit by Bowen against Clemens for rent. There was judgment for the plaintiff and the defendant brings writ of error. Charles R. Henry, for the appellant. Frost & Sprague, for the appellee. 494 MOORE, J. On the ninth day of October, 1905, one Carl Theis rented lot 5 in block 3 of the village of Tower, and all buildings thereon, for the term of six years from and after May 1, 1904, to be occupied for saloon purposes, at the stated price of twenty-five dollars per month for the property. The lease contained the usual covenant for quiet enjoyment, and a covenant on the part of the lessee to keep the premises in the usual repair; damage by the elements excepted. After the making of this lease, the defendant entered into possession of the premises and occupied the same according to the terms of the lease until the 15th of January, 1908, when the building was destroyed by fire without the fault of the defendant. The lessor, Theis, assigned his right of action to plaintiff, and he brings suit to recover the stipu lated rent for the period since the destruction of the building by fire. The defendant contends that, where the property leased is destroyed by fire and rendered worthless for the purpose for which it was intended, this relieves the lessee.from the payment of rent. There is a line of cases which hold that where the property leased is a portion of a building, and it is destroyed or damaged so that the lessee may not, without trespassing upon other's rights, enter to repair or rebuild, these circumstances excuse the lessee from the payment of rent. The test seems to be whether the lessee has the right to go on and rebuild, and whether the loss covers the land as well as the building. In the present case, there was a lot larger than the building, and it was occupied by one William Downs, a tenant of the defendant. The case in all essential particulars is ruled by our own two cases of Chesebrough v. Pingree, 72 Mich. 438, 40 N. W. 747, 1 L. R. A. 529, and Lieberthal v. Montgomery, 121 Mich. 369, 80 N. W. 115. We discover nothing to distinguish the present case from the case last cited. The suggestion that there is something in the contract relation which changes the rule is based apparently upon the covenant for quiet enjoyment. But accidental injuries to the premises from natural causes, 495 which interfere with the lessee's enjoyment of the premises, are not considered a breach of the lessor's covenant for quiet enjoyment: 18 Am. & Eng. Ency. of Law, 2d ed., p. 628. The fact that the building was damaged and that the owner recovered the insurance does not release the lessee from the payment of the rent: 18 Am. & Eng. Ency. of Law, 2d ed., p. 308, and cases cited. We think no error was committed in the case. Ostrander, Hooker, Blair and Stone, JJ., concurred. The Liability of a Tenant for Rent upon the Destruction of a Leased Building is considered in the note to Wattles v. South Omaha I. & C. Co., 61 Am. St. Rep. 566. A provision in a lease that the tenant shall return the premises in as good condition as when received, "loss by fire, inevitable accident, or ordinary wear excepted," obligates the tenant, upon the termination of the lease by agreement after a fire, to remove the debris and rubbish resulting from the partial burning of his goods: Boardman v. Howard, 90 Minn. 273, 101 Am. St. Rep. 409. UNION TRUST AND SAVINGS BANK v. TYLER. [161 Mich. 561, 126 N. W. 713.] GIFT OF BANK DEPOSIT.-Where a Depositor in a Bank causes one of its officers to write upon her bankbook that in the event of her death the account is payable to her daughter, and afterward she sends for the daughter and tells her she has something to give her, and she states to others that she has fixed the matter so that her daughter can get the money, and the daughter has possession of the book after the death of the mother, this is sufficient to show a gift of the deposit. (p. 524.) GIFT OF BANK DEPOSIT.-The Mere Possession by a Daughter of her mother's bankbook after the death of the latter raises no presumption of ownership. (p. 524.) GIFT FROM PARENT TO CHILD-Conclusive Evidence of a Gift from parent to child is not necessary. It requires less positive testimony to establish the delivery of a gift from a parent to a child than between persons not related, and when there is no suggestion of fraud or undue influence, slight evidence will suffice. (p. 525.) GIFT OF BANK DEPOSIT—Delivery of Book.-A valid gift of money in a savings bank may be effected by the delivery of the depositor's passbook to the donee, with intent to give the deposit. (p. 525.) Brown, Farley & Selby and John H. Tyler, for the appellant. Clinton Roberts, for the appellee. 562 BROOKE, J. Esther Hynan, deceased, for many years prior to her death, had a savings account with complainant's bank. She died September 4, 1908, leaving several heirs, and among them defendant Catherine Gordon, her daughter. Sometime in the year 1906 deceased took her bankbook to complainant, an officer of which, at her request, wrote upon the book the following words: "In the event of her death, this account is payable to her daughter, Catherine Gordon." A similar entry was made upon the account in complainant's books. Early in August, 1908, deceased, being very ill, sent for her daughter, who, with her husband, went at once to the home of deceased. Upon their arrival, the husband testifies that they found deceased much out of breath, and fanning herself; that deceased said to her daughter: "I thought you would never get here. I have something I want to give you. The husband did not see deceased give the bankbook to his wife, but it was shown him by his wife a few days later, but before Esther Hynan's death, and it was shown by both of them to the complainant bank before that event transpired. In a conversation had by deceased with one Elizabeth Rankin, an old friend, after the visit testified to by the husband, and about a week before her death, deceased said she had divided her property among her children; that she had it fixed up so it would be unnecessary to probate, and that she thought she had got it all right so that Kitty (appellee) would draw the money. 563 Both defendants having made demand upon complainant for the money deposited, it filed its interpleader bill. Each defendant answered, claiming the fund, Tyler, as administrator of the estate of Esther Hynan, and Catherine Gordon, as donee of a gift made to her by Esther Hynan in her lifetime. From a decree in favor of defendant Gordon, defendant Tyler appeals. It is urged by appellant, and we do not understand it to be questioned by appellee, that the indorsement upon the bankbook was testamentary in character, and wholly inoperative to convey any interest in the fund, because lacking in all the statute formalities relative to the execution of a will. There is no doubt that appellee can take nothing by virtue of the writing. We think it may be considered, however, as bearing upon the intention or desire of deceased to possess her daughter of this fund at the time of her death. At the time the indorsement was made, it is evident that deceased intended to retain possession and control of the deposit during her lifetime, but supposed that the indorsement would empower her daughter to draw the money after her death. Less than a month before her death, the book (without which the money cannot be drawn) passed from the possession of the deceased into the possession of her daughter. The evidence of a gift from the mother to the daughter is neither very clear nor very satisfactory. It is apparent that no one, except the parties, was present at the moment the transfer was made, and the daughter's lips are sealed as to what occurred. We are, however, of the opinion that, meager as the proof of a gift is, it is still sufficient to support the inference drawn by the circuit judge that Esther Hynan, in her lifetime, gave to the defendant Catherine Gordon the bankbook evidencing the deposit, with the intention of conferring upon her daughter a present ownership in the fund. pre It may be conceded, as claimed by appellant, that the mere possession of the book by the daughter raises no 564 sumption of ownership, but we think that the possession of the book, coupled with the mother's statement to the daughter, in the presence of her husband, and the further statement of the mother to the witness Rankin, that she had fixed the matter so her daughter could get the money, indicates that the mother was unwilling, death being near, to have the daughter's right to the deposit rest upon the writing, and therefore gave her the book, and with the book the deposit represented thereby. It must be borne in mind that for two years or more deceased had intended the deposit to go to her daughter at the time of her own death, and that at the time the daughter gained possession of the book the mother was very ill, and clearly expecting to die in the near future. Conclusive evidence of a gift from parent to child is not necessary. In the case of Love v. Francis, 63 Mich. 181, 6 Am. St. Rep. 290, 29 N. W. 843, this court said: "It requires less positive and unequivocal testimony to establish the delivery of a gift of a father to his children than it does between persons not related, and in cases where there is no suggestion of fraud or undue influence very slight evidence will suffice': See, also, Ellis v. Secor, 31 Mich. 185, 18 Am. Rep. 178; Thatcher v. St. Andrew's Church, 37 Mich. 264, and Bangs v. Browne, 149 Mich. 478, 112 N. W. 1107, and cases there cited. That a valid gift of the money deposited in a savings bank may be effected by the delivery, to the donee, of the depositor's passbook, with intent to give the donee the deposit represented by it, is settled law: See 20 Cyc. 1239, where the authorities from the various states are collected; Reed v. Whipple, 140 Mich. 7, 103 N. W. 548; State Bank of Croswell v. Johnson, 151 Mich. 538, 115 N. W. 464. The judgment is affirmed, with costs. Ostrander, Hooker, Moore and McAlvay, JJ., concurred. As to What Amounts to a Gift of a Bank Deposit, see the recent cases of Supple v. Suffolk Sav. Bank, 198 Mass. 393, 126 Am. St. Rep. 451; Coolidge v. Knight, 194 Mass. 546, 120 Am. St. Rep. 573; Bailey v. New Bedford Inst. for Savings, 192 Mass. 564, 116 Am. St. Rep. 270; Matter of Barefield, 177 N. Y. 387, 101 Am. St. Rep. 814; Murphy v. Bordwell, 83 Minn. 54, 85 Am. St. Rep. 454. A gift or transfer of a deposit in a savings bank may be accomplished by the delivery of the bankbook without any written assignment: Bryant v. Abington Sav. Bank, 196 Mass. 254, 124 Am. St. Rep. 552. Gifts Causa Mortis are discussed in the note to Johnson v. Colley, 99 Am. St. Rep. 890. FARLIN v. SANBORN. [161 Mich. 615, 126 N. W. 634.] WILL-Life Estate With Power of Disposal.-Where a man devises all his property to his wife for life, with power to convey, and in the clause following devises, upon her death, the estate that may be remaining to his heirs living at the time of his decease, the will creates a life estate in the wife with a vested remainder over to such heirs. (p. 528.) WILL-Power of Disposal-Life Estate.-Where an estate is given generally or indefinitely, with a power of disposition, it carries the fee, except when the testator gives the first taker an estate for life |