Opinion
01-21-1902
DUNN v. HOUGHTON et al.
Thomas P. Noonan, for complainant. John F. Marion and William B. Gillmore, for defendants.
(Syllabus by the Court.)
Suit by Katie Dunn, wife of Michael Dunn, against James M. Houghton and others. Decree for complainant.
Thomas P. Noonan, for complainant.
John F. Marion and William B. Gillmore, for defendants.
STEVENSON, V. C. The complainant seeks in this suit to obtain a sum of money deposited with the defendant the Commercial Trust Company of Jersey City. The other defendants, the executors of Mary Kane, deceased, claim that they are entitled to this money as a part of the estate of their testatrix. The stakeholder, the Commercial Trust Company, is indifferent; desiring only to be protected in any paymentwhich it may make. The money in dispute, amounting to between five and six hundred dollars, was at the time of the death of Mary Kane on deposit in the Emigrant Industrial Savings Bank of the City of New York. After the death of Mary Kane a dispute arose between the parties to this suit as to the ownership of the fund. The parties all resided in Jersey City, in this state; and, in anticipation of litigation to settle their dispute, they agreed that the money should be brought within the jurisdiction of this court. Accordingly the fund was drawn from the New York bank by the joint action of the parties, and deposited with the defendant the Commercial Trust Company in Jersey City, to the credit of the two claimants jointly. It is admitted that the ownership of the fund has not in the slightest degree been affected by this change of stakeholders. The ownership of the fund is to be determined from its status upon the death of Mary Kane, while deposited in the Emigrant industrial Savings Bank, in New York City, where it stood credited on the books of the bank to "Mary Kane or niece Katie Pender"; Katie Pender being the name of the complainant before her marriage to her present husband. No question is raised as to the jurisdiction of this court. Both parties desire their dispute to be litigated and decided here precisely as if the Commercial Trust Company, instead of having been made a defendant at the suit of Mrs. Dunn, had filed a bill of interpleader against Mrs. Dunn and the executors of Mrs. Kane. Moreover, the transfer of the fund to the defendant the Commercial Trust Company, under the circumstances proved in this case, established, I think, a relation between the trust company and the parties to this suit, who stand on the books of the company as joint depositors, quite different, in fact, from what the form of the account would indicate. In the shape in which this case stands, I think the court has full jurisdiction to decide the contest which the parties have submitted for decision.
The fund in dispute is a part of the estate of Mary Kane, deceased, belonging to the defendants her executors, unless it passed to the complainant at Mrs. Kane's death as a gift causa mortis, or was payable at Mrs. Kane's death to the complainant, as the result of a gift inter vivos. Mrs. Kane was an industrious, middle-aged woman, who went out to work by the day in the house of persons who employed her. On August 10, 1894, she had a husband, but no child or other descendant, and she was apparently without expectation of issue. Her only son. Francis by name, a young man 19 years of age, had died a few months before. Her nearest relatives were nephews and nieces, some eight or nine in number, including the complainant. At that time (August 10, 1894) Mrs. Kane had deposits in four different savings banks. The predecessor of the account in question, with the Emigrant Industrial Savings Bank, had been opened September 22, 1887, with a deposit of $50 to the credit of "Mary Kane or son, Francis." The next deposit in this former account was on April 7, 1888, amounting to $65. No other deposit was made until April 25, 1894, when $300 was deposited. No moneys were ever drawn from the account until it was closed and substituted by the account in question. One. of the other three savings bank accounts above mentioned was with the Bowery Savings Bank, and appears to have been maintained by Mrs. Kane as an account with her "in trust" for her son, Francis. What the history of this account was prior to August 10, 1894, was not shown. The remaining two deposits Mrs. Kane had in her own name alone, with pass books in the usual form; one being with the Bank of Savings in the City of New York, and the other with the Hudson City Savings Bank, in Jersey City. In this situation of affairs, Mrs. Kane resolved to change the two accounts in which the name of her deceased son appeared, and substitute the name of her niece Katie Pender, the complainant in this cause. The evidence shows, beyond question, that Katie was a favorite with her aunt Mrs. Kane. Katie was then about 14 years of age,—a delicate child, who had light employment, minding children. On the day in question (August 10, 1894) Mrs. Kane went to the house of a Mrs. John Burke, where Katie was so employed, and asked Mrs. Burke's permission to take Katie to New York with her. In answer to a question from Mrs. Burke, Mrs. Kane stated that the object was "to place two bank books in her name" (i. e., in Katie's name), and further stated, in substance, that she wanted Katie to have the deposits at her (Mrs. Kane's) death. Thereupon Katie went with Mrs. Kane to New York, and called with her aunt at the two banks where the deposits were to be changed. The deposit in the Bowery Savings Bank was changed so as to stand in the name of "Mary Kane in trust for Katie Pender." This was a small account amounting then, with interest, to $59.70. It remained undisturbed, without being added to or drawn from, for the five and a half years which elapsed before Mrs. Kane's death. After Mrs. Kane's death her executors recognized the right of the complainant to the money, and she was permitted to draw the same for her own use. The entire fund on deposit in the Emigrant Industrial Savings Bank to the credit of "Mary Kane or son, Francis," which had stood so credited nearly seven years, and from which no moneys had ever been drawn, was closed out, and the amount was transferred to the credit of "Mary Kane or niece Katie Pender." Both Mrs. Kane and Katie Pender put their signatures in the usual way upon the book kept by the bank for that purpose, and thus, in the absence of other evidence, both ofthese persons entered into the usual depositor's contract with the hank, and the bank entered into such contract with both of them. The amount of the new account thus opened was $441.51, and, like the account with the Bowery Savings Bank, it remained undisturbed, without being increased or diminished, during the lifetime of Mrs. Kane. From the date of this transaction (August 10, 1894) continuously until two or three days before her death, which occurred March 14, 1900, Mrs. Kane kept all four of the pass books representing the abovementioned four bank deposits exclusively in her own possession. During that time she went personally to the banks to make deposits, to draw money, and to have the interest written in the books. It is inferable from the evidence, if not positively proved, that Mrs. Kane from time to time went to the Emigrant industrial Savings Bank and had the interest written in the book,—the interest due on the account which she was otherwise maintaining without change. Mrs. Kane during the 5 1/2 last years of her life, while she maintained all four of these accounts, sharply distinguished between the two accounts in which her niece's name appeared and the two which were maintained in her own name alone. The former, as we have seen, remained unchanged. One of the latter shows that she made both deposits and drafts while the record of the other exhibits three drafts, but no deposits.
The evidence includes an admission of the parties relating to the above transaction as follows: "That the rule of said Emigrant Industrial Savings Bank in the case of an account in two names, as the said account of Mary Kane and Katie Pender was had therein, was to pay the moneys in said account to either of the parties so named in such account, upon presentation of the bank book and giving of receipt by either of them at any time, and to tell parties so depositing money in said bank that such was the rule of said bank." None of the bank pass books were offered in evidence.' No evidence of any kind in relation to the necessity of presentation of the pass book in order to draw money was offered, except what is contained in the above-recited admission. How far the banker's contract between the Emigrant Industrial Savings Bank, of the one part, and Mrs. Kane and the complainant, of the other, was modified by a condition relating to the presentation of the bank book, does not distinctly appear. This matter, in the view of the case which I have reached, is not material; but it is a fact of great importance if what has been said by learned judges in some of these bank pass book cases is to be applied as law to the decision of this present case. Although such a supposition might be destructive of the complainant's case, under the authority of some of the decisions of which I shall refer, in my judgment the complainant might safely concede that the contract of the bank to pay money either to Mrs. Kane or to the complainant contained a further provision that the bank should not pay money from the account to the complainant in the lifetime of Mrs. Kane without Mrs. Kane's permission, and the further express provision that the survivor of the two should have a right to receive the entire balance of the account. This is the result which the testimony shows, beyond doubt, Mrs. Kane intended to secure. The case is singularly free from any indication of a possible intention on the part of Mrs. Kane to maintain these two accounts in the form in which they were placed for any reason of convenience to herself. The situation of both parties was such as to make it highly improbable that Mrs. Kane, even in case of her illness, would wish to avail herself of the power of the complainant, upon presentation of the pass book, to draw money for her (Mrs. Kane's) use. When the transfer of the account was effected, the complainant was an inexperienced child, as we have seen, —an entirely unsuitable person to send from her home in Jersey City to the city of New York to attend to the business of drawing money from a bank, and carrying the same back to Jersey City. Mrs. Kane herself was a woman of vigorous health until within three weeks of her death, which was caused by an attack of pneumonia. Mrs. Kane in fact attended to her own bank business in New York. While Mrs. Kane transferred these two savings bank accounts in pursuance of the same purpose, the form of the transaction at the two banks widely differed. In the one case Mrs. Kane, in form, constituted herself as trustee for her niece. There is no indication here of a purpose to evade any rule of the bank limiting the amount to be received from any one depositor. The amount of the deposit was very small ($59.70), and Mrs. Kane is not shown to have had any other account with that bank. The form in which the account was placed did not enable the complainant, for any reasons of convenience to Mrs. Kane, to draw money from the account. In the other instance— the transaction particularly under investigation in this case—the form of the account did not constitute Mrs. Kane a trustee, but made the moneys credited to the account payable either to Mrs. Kane or to the complainant. The fair inference is that the difference in form between these accounts resulted directly from the different advice or suggestions which Mrs. Kane received from the officers of these two banks when the old accounts were opened in which the name of Mrs. Kane's son, Francis, appears. The positive declarations of Mrs. Kane at the time these accounts were transferred in August. 1894, and her frequent declarations of purpose and intent made subsequently to various witnesses, show conclusively that Mrs. Kane's purpose and wish were preciselythe same with reference to both accounts. The amount of Mrs. Kane's estate, both real and personal, which passed by her will, does not distinctly appear, but it does appear that she devised a house to her nephew, and that the amount on deposit to her credit in the two savings bank accounts which she retained was between $1,700 and $1,800. There was no evidence to show that the special gift of $500 or $000 to this favorite niece was unnatural or unreasonable.
On the part of the defendant very little effective effort was made to meet the probative force of the facts above stated, and of the positive declarations of Mrs. Kane, tesfied to by indifferent witnesses, which I have not undertaken to set forth, bearing upon the question of Mrs. Kane's donative purpose. Declarations by Mrs. Kane subsequent to the making of the contract with the bank which go to establish the title of the complainant are manifestly competent. Assuming that declarations which look the other way are also competent, none such have, I think, been proved in this case, although evidence to that end was offered without objection. One witness for the defendant testified that Mrs. Kane at one time stated that her purpose in making these funds subject to the complainant's draft was in order that the complainant, after Mrs. Kane's death, might provide for the support or the clothing of Mrs. Kane's husband; Mrs. Kane considering that her husband was incompetent to take care of himself, or to have the charge of money. As Katie was but 14 years of age, and evidently without any experience in business matters or in the control of money, this testimony is not to be accorded a very great deal of weight. Still, Mrs. Kane was shown to have been in the habit of exhibiting her bank books to her friends and to those who employed her, and of talking with them about her affairs, including the disposition of her little estate. There is evidence that she was subjected to the usual attempts in such cases of more or less well-meaning persons to influence her in dividing her property among her nephews and nieces. She naturally sought to justify what she had done, and perhaps to intimate further things which she intended to do, to gratify her officious friends or allay their criticisms. Proof of such talk which did not result in conduct is of very little importance. It is highly probable, as Mrs. Houghton, the wife of one of the executors, testifies, that Mrs. Kane, after her husband died, told her (the witness) that she intended to take Katie's name out of the account or accounts in question; giving as a reason that she had asked Katie to go to live with her, "and she didn't go. She didn't come to see her as much as her brother did, and she felt kind of hurt over it." This evidence seems to corroborate most positively all the evidence on behalf of the complainant which goes to establish the original donative purpose which Mrs. Kane at least supposed she had carried into effect and made legally operative. There is no evidence that Mrs. Kane ever took one step to use her power to extinguish either of the two bank accounts in question by drawing the money therefrom in order to make the contract of the bank with the complainant —the complete donation effected August 10, 1894—of no beneficial value to the complainant after her (Mrs. Kane's) death. Mrs. Kane's husband died some time in the year 1899. After this event, in October, 1899, Mrs. Kane made her will, distributing her property among her nephews and nieces, but, so far as has been proved, making no attempt in any way to affect the donative settlement which she had made, as she supposed, for the benefit of her niece in August, 1894. The indications are that in January, 1900, Mrs. Kane had the interest written in the pass book of the Emigrant Industrial Savings Bank; but notwithstanding the death of her husband, and her alleged declaration of purpose to "take Katie's name out of the account," she left the account untouched. If Mrs. Kane at any time contemplated making a change of purpose in regard to the bank accounts in question, it is clear that in fact she made no such change. When she was attacked by her last illness in February, 1900, she sent for the complainant, who then was married, to come and stay with her; and accordingly the complainant and her husband established themselves in Mrs. Kane's house, and the complainant nursed her aunt until her death.
So far I have stated the facts upon which the complainant relies to establish a gift inter vivos. The main facts bearing upon the question of a gift causa mortis, in case the claim to a gift inter vivos fails, are as follows: The complainant claims to have proved that Mrs. Kane, on her dying bed, apprehending her approaching demise, took from her person and delivered to the complainant, manually, the key of a trunk. This trunk was in a different room from that in which Mrs. Kane was confined by her illness, and was not subject to her view, or in any way under her control, except that it was in her house, and she held its key. The trunk contained papers belonging to Mrs. Kane, including all four of the savings bank pass books which have been already described. Evidence was introduced to show that the purpose of Mrs. Kane in delivering the key of the trunk to Mrs. Dunn, the complainant, was to enable the complainant to obtain the particular bank book in question, and with it to draw the money in dispute for her own use. The testimony offered by the complainant is to the effect that Mrs. Kane anticipated that after her death the complainant might have trouble in drawing the money, and therefore she wanted her to draw the money at once, before her death. The delivery of the key was the first of a series of acts which were necessary to put thecomplainant in possession of the money. In fact, the complainant obtained possession of the key before Mrs. Kane's death, and by means of it took from the trunk (whether immediately after the delivery of the key, or subsequently at her own convenience, does not appear) the four bank books, and thereupon almost immediately delivered these books for temporary safekeeping to a proper custodian,—the attorney who had drawn Mrs. Kane's will, and who was practically acting in advance in the interest of her estate. There is no satisfactory evidence that Mrs. Kane ever knew that the complainant in fact had, by means of the key or otherwise, obtained possession of any of the bank books. The whole transaction, so far as the complainant undertakes to prove it, began and ended, on the part of Mrs. Kane, with the delivery of the key to the complainant, in order to enable the complainant to open the trunk and procure the pass book, and with the pass book to draw the money. There was no gift of the trunk. There was no gift of the key. Both trunk and key plainly remained the property of Mrs. Kane until she died, and then became a part of her estate in the hands of her executors. The time and circumstances under which the key was transferred to the complainant are the subjects of conflicting evidence, but I think that the receipt given for the pass books by the attorney, as well as other evidence, compels the conclusion that the books were taken from the trunk by the complainant and delivered to the attorney on March 12, 1900,—two days before Mrs. Kane's death. Whether the complainant obtained the key (through the voluntary delivery thereof to her by Mrs. Kane or otherwise) on March 12th, or at some prior time, may not be entirely clear. One witness for the defendants (Mrs. Shenan) swears positively that while Mrs. Kane was unconscious, on the very day of her death, she (the witness), while making necessary adjustments of Mrs. Kane's apparel, took the key from Mrs. Kane's person and delivered it to the complainant, as a proper custodian, together with a small amount of money which Mrs. Kane had with her in her bed. Mrs. Shenan seems to be entirely in error in placing the transaction which she describes on the day of Sirs. Kane's death. However that may be, there is a conflict of testimony as to the most essential fact necessary to be established in order to make out a gift causa mortis. In addition to tills conflict in the testimony, the complainant failed to produce a Mrs. Gilday, whose testimony, if truthful, apparently would help largely in ascertaining the facts under investigation. No explanation of the failure to produce this witness was made, further than to make it appear that Mrs. Gilday's sympathies were opposed to the complainant's claim. That Mrs. Gilday could not be relied on to tell the truth about plain facts of which she had personal knowledge did not in any way appear. The burden is upon the complainant, and this conflict of testimony and unexplained omission of testimony might be fatal to her case, even if without those defects her case could be considered as standing proved. I do not consider it necessary, however, to deal at all with this feature of the case, because, if the facts be all admitted which the complainant claims to have proved, in my judgment they fail to establish a gift causa mortis. The money, when drawn, apparently, was to be the subject of the gift causa mortis, according to the testimony for the complainant, but the money was not drawn. No money was ever delivered. In order to establish any gift causa mortis, it must be proved that something representing the money, or, to speak more accurately, as it seems to me, something representing the debt due from the bank, must have been transferred,—must have been delivered by Mrs. Kane to the complainant. If Mrs. Kane was the sole equitable owner of the debt, or the property represented by the obligation of the bank and the bank pass book, it would seem that the more favorable view for the complainant would be to regard the pass book as if made out to Mrs. Kane alone. Otherwise the delivery of the pass book might be considered as possibly made in order to accomplish some purpose of convenience which Mrs. Kane had in view when she caused the complainant's name to appear in the account. However this may be, I cannot see that the complainant's claim to a gift causa mortis is weakened if we disregard the fact that she was a party to the contract with the bank, and that her name was in the pass book, and treat the ease as the ordinary one where the gift of a debt due from a savings bank to the alleged donor is sought to be made out by delivery of a pass book containing the donor's name alone. Assuming that Mrs. Kane bad the necessary donative purpose, neither the trunk nor the entire contents thereof were the object of that purpose. The delivery of the key, under the circumstances, cannot be taken as the equivalent of the delivery of the bank book. There was no reason, according to the evidence for the complainant, why, if Mrs. Kane wished to give one of her four bank pass books to the complainant, she could not have sent for it, and made such delivery after seeing and identifying the subject-matter of her proposed gift. The dying donor who wishes to give a particular object in a house or a trunk remote from his person, but of Which he holds the key, naturally sends for the object which he desires to give. In such a case the key of the house or the key of the trunk is not in any sense even a symbol of a particular object in the house or trunk, although it might be a symbol of the whole contents of the house or of the trunk.
It seems to me that the facts of this case bring it directly within the doctrine laiddown by the court of errors and appeals in the case of Keepers v. Deposit Co. (1803) 56 N. J. Law, 302, 28 Atl. 585, 23 L. R. A. 184, 44 Am. St. Rep. 397. The facts of the two cases are somewhat different. In each case the delivery of the key of a receptacle which was situated in another room was claimed to be a sufficient delivery to sustain a gift causa mortis of a part of the contents of the receptacle. A close comparison of the facts of the two cases in some respects gives the advantage to the complainant in the Keepers Case, and in other respects to the complainant in this case. Without making such comparison,—conceding that the complainant in this case has made out a stronger case than did the complainant in the Keepers Case,—still the doctrine laid down in the Keepers Case (its ratio decidendi) seems to bear upon Mrs. Dunn's claim with destructive force, whether it is the law of New Jersey that the delivery of a savings bank pass book, evidencing a debt from the bank to the party so delivering it, coupled with a distinct purpose to denote the debt, is sufficient to effect a gift of the debt causa mortis, may perhaps still be open to some argument. Matthews v. Hoagland, 48 N. J. Eq. 455, 486-490, 21 Atl. 1054; Corle v. Monkhouse, 50 N. J. Eq. 537, 544, 25 Atl. 157; Insurance Co. v. Grant, 54 N. J. Eq. 208, 33 Atl. 1060; Appeal of Walsh, 122 Pa. 177, 15 Atl. 470, 1 L. R. A. 535, 9 Am. St. Rep. 83; 14 Am. & Eng. Enc. Law (2d Ed.) p. 1029, note 8; Id. p. 1030, notes 1 to 4. Assuming that, in spite of the fact that a written assignment is so easy to draw, the weight of modern authority sustains the efficacy of such delivery, there is a further question,— especially since the decision of the court of errors in the Keepers Case,—whether it would not be a dangerous extension of the law of gifts causa mortis, altogether against public policy, to permit any substitute whatever for the manual tradition of the pass book, or the written, executed assignment of the debt. Cogent reasons may be given for protecting the thousands of depositors in savings banks, similar to those indicated by Mr. Justice Dixon in the Keepers Case, in relation to the contents of safe deposit boxes and vaults of which the owners hold the key. Mrs. Kane's pass book was not the actual subject of her alleged gift, but, rather, a symbol of such gift. The key was therefore, at most, a symbol of a symbol of a gift. The delivery of the key of a trunk containing so many different articles which Mrs. Kane might desire to have taken from it for so many different purposes is an act in itself far less significant of a gift of any particular articles in the trunk than the manual delivery of the article itself. The whole direction of the donative purpose toward any one of four savings bank accounts, or any one of perhaps fifty different articles of value, is to be ascertained by the spoken words alone. I think that notwithstanding that the complainant, by the use of the key, in fact obtained possession of the pass book before the death of Mrs. Kane, the doctrine of the Keepers Case rules this case adversely to the complainant's claim that there was a gift to her causa mortis.
The remaining question is whether Mrs. Kane in her lifetime made an effective donation to the complainant. Mrs. Kane on August 10, 1894, had a transaction with the complainant and the Emigrant Industrial Savings Bank. The problem to solve is whether in that transaction Mrs. Kane used her property so as to vest in her niece a contractual right against the bank of potential money value, with intent that her niece should hold that right for her (the niece's) own use, as a pure donation. The investigation involves an examination of the external form of such a supposed donation, and the essential donative purpose which must invariably accompany every transaction, however solemn in form, in order to constitute it a gift. In order to a gift, there must always be an intent to make a gift. We may disregard, for the purposes of this case, those instances where the form of gift-making is pursued, without the intention to make a gift, but a gift is established by reason of an estoppel. Betts v. Francis, 30 N. J. Law, 152. The question which had given difficulty, especially in the maze of decisions in savings bank pass book cases found in our Reports, is, what is the essential form—what are the essential physical facts—which must appear in order to give effect to the donative purpose? No legal difficulty is presented in ascertaining the donative purpose. That is a fact to be ascertained by evidence. The law of gifts was originally developed in cases where the subject of the gift—the thing given—was a chattel. The obvious rule was that delivery of the chattel—absolute "manual tradition"—was essential. Mere delivery of the custody of a chattel is a colorless transaction. In the affairs of life the owner of chattels perhaps more frequently delivers them to the custody of others for his own use than for the use of the person to whom they are transferred. But while the donative purpose was the main fact to be ascertained, it was a safe rule to require that the donee should prove not only the donative purpose, but the physical transfer of possession effected by the donor. The retention of possession in any degree by the supposed donor of a chattel capable of delivery plainly constitutes evidence against the existence of the donative purpose. When the subject of the gift was a debt, which the possessor of a written instrument, such as a negotiable note or bond, could by virtue of his possession collect, or otherwise convert into money, it was natural to allow delivery of the note or bond to be the equivalent of a delivery of the chattel. No goodreason could be suggested why a man should be permitted to make a gift of $1,000 by delivering gold coin of that amount, and yet be prohibited from making a gift of a negotiable bond for $1,000, which is bought and sold like a chattel, and the title to which in all respects passes as does the title to a chattel. When the subject of the gift is a chose in action, other than a negotiable instrument the older law held the general rule to be that delivery of the instrument representing the chose in action was not sufficient to support a donative purpose. A written assignment was necessary. 2 Kent Comm. 439; Dilts v. Stevenson, 17 N. J. Eq. 407, 413. The later law regards delivery of nonnegotiable evidence of debt an adequate form—a sufficiently significant physical fact—to sustain and effectuate a donative purpose, on the ground that by such delivery, while the donor may not have given the donee absolute control over the debt, he has put the debt beyond his own control. Cook v. Lum, 55 N. J. Law, 373, 377, 26 Atl. 803. But in the case of contracts which are not evidenced by notes or bonds, but which in their performance will or may, upon the happening of contingencies, benefit a third party by way of gift, the cases seem to be in conflict in regard to what necessary physical facts must exist —what the essential form of the transaction must be—in order to sustain and effectuate a donative purpose. A large part of the difficulty, it seems to me, has arisen from a failure to recognize the distinction between a donative transfer of property by the procurement of a contract, the performance of which may benefit the donee, and the donative transfer of a contract theretofore existing between the donor and a third party by delivery of the evidence of the contract by the donor to the donee. The two eases are far assunder. They can, perhaps, most conveniently be illustrated by referring to a life insurance policy. A man may effect a donative transfer of a large portion of his estate to a beneficiary through the instrumentality of a life insurance policy made payable to such beneficiary, and it may be observed that the whole beneficial enjoyment of the gift is necessarily postponed until the death of the donor, and the validity of the donative transfer is not affected by a reservation of power in the policy of the donor to extinguish the liability of the insurance company in his own lifetime by surrendering the policy. The other case above referred to is illustrated by a gift of the benefits of a life insurance policy made payable to the donor, which under our law can be affected by delivery of the policy to the donee with the essential donative purpose. Insurance Co. v. Grant, supra, and cases cited. In all those cases where the intention is to donate a chattel or a negotiable instrument, or a chose in action which is so related to a chattel, like a savings bank book or a nonnegotiable note or bond, that possession and production of such chattel are ordinarily necessary in order to reduce the chose in action to possession, delivery of the chattel is a natural requirement, in the absence of a written assignment. But where the donative purpose is sought to be accomplished by procuring a third party, such as a savings bank, to contract directly with the donee, or for his benefit, the whole law as to delivery seems to be in a large degree inapplicable. There is nothing to deliver. The donation is actually effected when the donor delivers his property to the savings bank, and thereby procures the savings bank to contract with or for the benefit of the donee. In the case of a donation through a life insurance policy payable to a beneficiary, no one ever heard that delivery of the policy or of anything else was necessary to effectuate the gift. One may purchase an annuity payable to himself for life, and then to a donee for life, and reserve a power to extinguish the annuity whenever he may see fit, and thus destroy all possible beneficial results to the donee from the contract. But in all such cases the gift is complete when the contractual right is vested in the donee, however conditional or contingent any enjoyment may be which the donee can derive from performance of the contract.
I am unable to perceive any reason why similar results to those above indicated cannot be reached, are not constantly reached, by contracts with savings banks. While no one ever speaks of a policy holder having money in the life insurance company, it is customary to refer to a depositor as having "money in the bank." A great deal of our language in relation to bank accounts and contracts is figurative. Of course, in fact there is no "money" of the depositor "in the bank," and the depositor has no title to any fund in the bank. The so-called depositor has absolutely parted with his money in every instance, and instead thereof has accepted a contract of the bank to pay him either an equal amount of money from time to time to that which he has paid to the bank, or a greater amount, according to the terms of the contract and the existing usury laws. These, are very simple and obvious facts, but a perusal of many of these savings bank book cases indicates that they are not infrequently overlooked.
In dealing with donative efforts made by benevolent persons through the instrumentality of savings banks, the question to be determined is, what is the form—what are the physical facts—which must exist in order to make the donative purpose legally effectual. In my judgment, when a man with donative purpose converts a part of his estate into an obligation of a savings bank to another person, the discharge of which obligation may, however, contingently benefit that person, and which that personcan enforce in case the contingency occurs which makes such enforcement advantageous, a case is presented of a complete gift. The external form of the gift is the absolute conversion of the donor's property into a binding obligation of a third party, the performance of which according to its terms may upon certain contingencies benefit the donee. There is nothing, however, contingent about the gift. The gift is absolute. The right is vested beyond recall in the donee. It is a matter of no consequence that the right so vested may prove in the end to be of no pecuniary value. To hold that a gift of this sort fails because the enjoyment of it may be conditional upon the donee's surviving the donor, or upon the donor's refraining from doing things which defeat the beneficial enjoyment of the gift, is to introduce a principle of law which if logically applied would play havoc with thousands of transactions, the validity of which has never been questioned, and which are not only harmless, but exceedingly useful. In the case of a gift causa mortis of a debt due to the deceased person from a savings bank, the claimant comes into court with a pass book which he admits be obtained from a dying person, and which, if in fact delivered to him by such person, may have been so delivered for any one of many purposes. In the case of a gift inter vivos of an interest in a savings bank account of the kind under consideration, made payable to the donor and donee jointly, or to the donor or donee, or to the donor in trust for the donee, the claimant shows that the deceased person in his lifetime intentionally converted his property into a definite contract of a bank, which obligated the bank to pay him (the claimant) money. A comparison of the external forms of these two transactions seems to me to show that the latter constitutes a far safer basis upon which to establish a gift than does the former. Mere possession of a chattel does not carry with it the slightest presumption as to the mode in which possession was acquired. Such possession may have resulted from the voluntary delivery of the chattel as a gift by some one who formerly had possession of it, but it may have been the result of any one of a large number of contracts of bailment, or it may have been the result of a trespass or a theft. But in the case of the savings bank book, where the claimant's name appears, the inquiry as to donative purpose begins at a point far in advance of the same inquiry with reference to an alleged gift of a chattel. The legal title, we may say, has been voluntarily vested in the person who claims the gift. The deceased person has voluntarily parted with his property in order to vest a property right in the claimant, and all this is proved beyond question by a record. The only question seems to be whether this legal right was vested in the claimant for the use and benefit of the claimant, or for the use of the alleged donor. Where the legal right has not been transferred for the use and benefit of the claimant, I think that the reported cases indicate that usually the truth is susceptible of proof after the death of the person who could speak with certainty and authority on the subject Significant circumstances almost uniformly seem to exist which indicate whether the claimant's contention is just and honest or not.
It is not necessary to discuss the question whether or not any of the various forms of savings bank accounts which have been referred to establish a presumption of a donation. My purpose has been merely to compare the form of a gift of a chattel with the form of a gift through a savings bank account, with a view to determine whether either of the two is naturally a safer and more satisfactory support for a donative purpose than the other. In each case the vitalizing donative purpose is absolutely necessary. In dealing with the necessity for delivery of something in order to effect a gift in some cases, I have refrained from discussing those numerous instances where real and personal property are transferred by way of gift, through the instrumentality of written conveyances, without delivery of anything, and with control over the donated property, and full power to revoke the donation, reserved to the donor in the instrument This subject is of importance in dealing with the limits within which delivery of something is necessary to a gift.
One additional topic must be briefly discussed, and that is the relation to the matter in hand of the statute of wills, or the law of wills, before our modern statutes were enacted. In some of these savings bank book cases it is intimated that where the donor retains possession of the bank book with intent that the donee shall not control the collection of the money except in case he survive the donor, and that the donor may retain the right and power during his lifetime to collect the money due on the bank account and appropriate it to his own use, thus destroying the beneficial value of the donation, the transaction is an invasion of the province of a will, and in conflict with the letter or spirit of the statute of wills. No statute of wills that I am aware of has ever been passed which undertook to interfere with the making of a donation by a legal conveyance, a legal contract, or a legal trust, because of the presence in the transaction of either or both of the elements above referred to. If the statute of wills could be construed to have such an effect, it would long ago have been applied to the abolition of that ancient legal curiosity, the donatio mortis causa. Lord Eldon, in the case of Duffield v. Elwes (1827) 1 Kligh (N. S.) 533, expressed the opinion that it would be an improvement of the law to strike out altogether this peculiar form of gift, but added that, as that had notbeen done, be was obliged to "examine into the subject of it." In Keepers v. Deposit Co., supra, as we have seen, the court of errors declares that the law of gifts causa mortis should not be extended. But no case has ventured to hold that either the donatio mortis causa, or any analogous donative provisions through life insurance contracts, annuity contracts, trusts, etc., which operate beneficially only in case of survivorship, and only upon the happening of contingencies which the donor controls, have ever been abolished by any statute of wills. A will is a mere "declaration or sentence of a man's mind as to what he would have to be done with his estate after his death." 5 Bac. Abr. tit. "Of Wills and Testaments" (A) p. 497; Jarm. Wills, c. 2, and cases and authorities there cited. A will during the life of the testator is absolutely inoperative, like an undelivered deed. If a gift must rest merely upon a declaration made by a deceased donor in his lifetime, the statute of wills applies with controlling power, and renders inoperative any declaration not made in the manner which the statute prescribes. But if the form of the gift, as distinguished from the donative purpose, is a contract, a conveyance, or a trust, the statute of wills has no application to the transaction. The sufficiency of the form of the gift in such cases is to be determined solely by the law of contracts, the law of conveyances, or the law of trusts. Voluntary settlements by conveyances or mere delivery of personal property to trustees for the donor's benefit during his life, and after his death for the benefit of the doner are valid dispositions of property. Green v. Tulane, 52 N. J. Eq. 169, 28 Atl. 9; Stone v. Hackett, 78 Mass. 227; Viney v. Abbott, 109 Mass. 300. And the reservation of a power of revocation, so far from exposing such settlements to any legal objection, helps to relieve them from the defect of improvidence. The whole body of established law in relation to voluntary settlements of real and personal property would be undermined if a settlement could be set aside because it invaded the province or discharged the function of a will. The function of a will is to effect the disposition of property after the donee's death in accordance with a mere declaration made by the donor in his lifetime, and during his lifetime entirely inoperative; but no conveyance, contract, trust, or other disposition of property can be declared Illegal or ineffectual because it practically discharges the same function as a will after the death of the person who made it. How dangerous it is to attempt to make a voluntary settlement without reserving full power of revocation, so as to make such settlement, like a gift causa mortis, in effect an ambulatory and testamentary disposition, is illustrated by a long series of American and English cases. Garnsey v. Mundy, 24 N. J. Eq. 243, and cases cited in the opinion of the chancellor; Van Houton v. Van Winkle, 46 N. J. Eq. 380, 385, 20 Atl. 34; Hall v. Otterson, 52 N. J. Eq. 522, 531, 28 Atl 907. In Hall v. Hall, L. R. 14 Eq. 365, counsel aptly refers to these purely donative settlements as "quasi testamentary dispositions" of property. A conveyance or settlement which practically discharges the function of a will may be an evasion of laws imposing taxes on legacies, or other laws limiting the power of the owner of property to dispose of it after his death, but cannot in any correct sense be said to be an evasion of the statute of wills. An instrument, to be an evasion of the statute of wills, must seek to be accorded the status of a will, without actually possessing the necessary attributes of a valid testamentary declaration. Illustrations of such Instruments can be given, but the subject belongs to the law of wills.
I have endeavored to state the principles which have led me to the conclusion that Mrs. Kane made a donative transfer of property to her niece, the complainant, on August 10, 1894. The gift was absolute and irrevocable, however any beneficial enjoyment of it may have been conditioned upon the occurrence or the nonoccurrence of certain events. Undoubtedly the donee had to survive the donor, and it was also necessary that the donor should refrain from doing certain acts, in order that the performance of the contract of the bank could be of any advantage to the donee; but a contingent or conditional advantage is a common object of sale and of gift. I am unable to perceive how the retention of the bank book by Mrs. Kane, even if we can largely supplement the meager proofs in regard to the effect of that retention, can in any way affect the completed donation which was made. As I have stated before, if the wildest possible effect which can be given to the retention of the bank book with reference to the control thereby of the bank account had been secured by a separate written contract between the donor and donee, or by provisions incorporated in the contract which the bank made with them both, I cannot see that a different result would be reached. Some one had to hold the pass book. Savings banks issue only one pass book for a single account. As it is conceded that Mrs. Kane, only, was to draw from the account during her lifetime, she was the natural and proper party, of the two who were interested, to hold the book. The retention of the book, therefore, did not in the slightest degree indicate that the "quasi testamentary" settlement was not final. The book was retained in pursuance of the donative settlement in order to enable the settlor conveniently to exercise her right reserved by the settlement, just as the assured retains possession of the life policy in order to exercise his reserved right of surrender. The retention of the book, therefore, did not leave the gift incomplete, as is the case where the attempted donation is of a debt due from a savings bank to the donoralone, evidenced by a pass book containing the name of the donor alone. Nothing remains to be done. The gift was complete. Both donor and donee had rights in respect of the debt due from the bank, and the voucher which evidenced that debt. Those rights naturally required the retention of the pass book by Mrs. Kane during her life, and upon her death the surrender of the pass book to the complainant.
How far the foregoing views are sustained, and how far they are controverted, by decisions of courts in other jurisdictions, which we receive with great respect, I shall not endeavor to inquire. An elaborate discussion of these decisions might be of use if it were possible to reconcile them. The following cases sufficiently illustrate the discordant opinions to be found in the Reports upon the questions presented by this case: Serivens v. Bank (1896) 166 Mass. 255, 44 N. E. 251; Eastman v. Bank (1884) 136 Mass. 208; Beaver v. Beaver (1889) 117 N. Y. 421, 423, 22 N. E. 940, 6 L. R. A. 403, 15 Am. St. Rep. 531; Martin v. Funk (1878) 75 N. Y. 134, 31 Am. Rep. 446; In re Bolin (1892) 136 N. Y. 177, 32 N. E. 626; Witzel v. Chapin (decided In 1855 by that eminent probate judge, Mr. Surrogate Bradford) 3 Bradf. Sur. 386; Savings Inst. v. Carpenter (1893) 18 R. I. 287, 27 Atl. 337; Savings Inst. v. Heffernan (1897) 20 R. I. 308. 38 Atl. 949; Dougherty v. Moore (1889) 71 Md. 248, 18 Atl. 35, 17 Am. St. Rep. 524; Bank v. Fogg (1890) 82 Me. 538, 20 Atl. 92; Flanagan v. Nash (1898) 185 Pa. 41, 39 Atl. 818.
The case last cited (Flanagan v. Nash) is a type of a class. G. transferred her account in a savings bank to herself and N. jointly. This was done in presence of both. Both signed the book kept by the bank for that purpose. Apparently, the bank entered into a contract with both these persons, although perhaps in regard to that matter the facts are not fully disclosed. Opposite the signatures the bank's treasurer wrote the words: "Either to draw." A pass book was made and delivered to G., which had these words stamped upon it: "Either party to draw, and, in case of death of either of them, the survivor shall have full power to withdraw the deposit, as if the same had been duly transferred to such survivor." So far as the opinion of the court in this case appears to hold that the evidence of a donative intention was insufficient, it does not call for consideration. But the decision seems to be based on the proposition that, no matter how absolute the proof of a donative purpose might be, something had to be delivered in order to render that purpose effectual. "The money in the bank" is treated as a chattel in the possession of a depositary. The original depositor is said to have "still held her title to the money," and that title is alleged to "have never passed away from her." That in fact the depositor had no title to any money in the bank; that the depositor had absolutely parted with her money; that the subject-matter of the attempted gift, if a donative purpose was present, was not money, not a chattel, but a contract right,—are propositions which seem not to have been suggested to the consideration of the court.
The recent case of In re Bolin, supra, decided by the New York court of appeals, presents a bank account in precisely the same form as the one before this court, and the decision turned wholly on the evidence in regard to the donative intention. Julia Cody, the decedent, in her lifetime transferred her savings bank account so that the moneys were credited to "Julia Cody or daughter, Bridget Bolin." The court held that the referee was warranted by the evidence in refusing to find "that it was Julia Cody's intention that upon her death the amount of the account in the savings bank should belong to her daughter Bridget." The court plainly intimate that if the donative purpose had been present a gift would have been established. Circumstances compelled the court to find from the "brief oral and documentary evidence" that the arrangement was made merely for the convenience of the original depositor. In that case the claimant (the daughter) had no direct relations with the bank. The contract of the bank was not made directly with her, and the court found from the evidence that in fact it was not made for her benefit.
The decisions of our own courts in New Jersey, which, of course, must control the action of this court in this case, do not, I think, in any way conflict with the conclusion which I have reached. In Shick v. Grote, 42 N. J. Eq. 352, 7 Atl. 852, the deposit in dispute was entered as follows: "Bank of Savings in Account with August Grote and Wife, Edvina, or Either." The claimant (the surviving wife) proved that the form of the deposit originally resulted from the rule of the bank which prevented the bank from taking more money from August Grote, the husband, than he had already deposited in his own name. Chancellor Runyon adjudged that the evidence in the case was not sufficient to establish a gift. In Smith v. Speer, 34 N. J. Eq. 336, the deceased depositor had in her lifetime two savings bank accounts, each in the usual form, in her own name. She desired to give the benefit of these deposits after her death to a nephew. Accordingly she made a declaration in writing in one of her pass books in these words: "This account is in trust for Frank B. Smith." She also, as I understand from the report, had a similar declaration entered in the book of the bank which contained her account, showing that it was her wish that she should make drafts during her lifetime, and that after her death her nephew should be able to draw. No new contract was made by the bank in either case. The bank made no contract with the nephew, nor did it make any contract with the depositor for the nephew'sbenefit. Chancellor Runyon affirmed the conclusion which Vice Chancellor Dodd had reached from the evidence, to the effect" that no transfer of property had been shown; that the design of the depositor "in making the entries evidently was to make a disposition of a merely testamentary character." This means that the donative purpose was manifested by a mere declaration, such as can only be made operative when the declaration can, under the law, be proved as a will. Skillman v. Wiegand (1896) 54 N. J. Eq. 198, 33 Atl. 929, presents a savings bank account in the joint names of a father and daughter. Vice Chancellor Pitney, after an examination of a large number of English and American cases, held that the evidence before him showed "clearly that the joint account was opened and maintained by the testator solely for convenience." It is assumed throughout the opinion that, if a donative purpose had been distinctly proved, the form of the transaction (i. e., creation of the contract between the savings bank, on the one hand, and the joint depositors, on the other) would have been sufficient to establish a complete gift inter vivos, which the surviving beneficiary would have enjoyed. Dennin v. Hilton (N. J. Ch.) 50 Atl. 600. This was a case decided orally by Vice Chancellor Pitney December 13, 1900. As yet it has not been officially reported. The case deals with two savings bank accounts in the joint names of two persons. In one instance the following statement was stamped upon the pass book: "This account, and all money to be credited to it, belongs to us as joint tenants, and will be the absolute property of the survivor of us. Either and the survivor to draw." In the other instance a similar statement was stamped upon or written in the pass book. The case differed materially from the one now before this court. In dealing with the effect of the creation of this joint contract, the learned vice chancellor uses the following language: "She [the decedent] vests the right to demand that money in herself and Captain Hilton jointly. Now, that is a vested right This is delivery, so to speak." The latest New Jersey case is Bank v. Schwoon, 50 Atl. 490, in which an opinion has just been filed by Vice Chancellor Pitney. In that case the decedent. Mrs. Roche, went with her intended beneficiary to the savings bank, where she had an account in her own name in the usual form, and had her contract with the bank changed, and a new contract substituted, which was indicated on the books of the hank by the following heading: "Helena Roche or Hy. Schwoon in Account with Hoboken Bank for Savings. Payable to either or survivor." The indorsement on the pass book was correspondingly changed. At the said time Mrs. Roche signed a paper. In the form of a contract, in a book kept by the bank, referring to her account, and purporting to make Schwoon and herself joint owners of all moneys deposited or to be deposited in the account, with full power in each of the two and in the survivor to draw, etc. It does not appear that Schwoon signed anything. At a later date, apparently because the pass book was full of figures, Mrs. Roche surrendered it to the bank, and took a new book, with a different number, to which the balance standing to her credit was transferred. She does not appear to have signed any paper similar to the one which in terms referred to the first account, but the new bank book exhibited an account with Helena Roche or Henry Schwoon, "payable to either or survivor." The new pass book appears to have been merely a substituted receipt for an indebtedness which remained undisturbed. The circumstances practically excluded the possibility that the power to draw from the account had been conferred upon Schwoon in order that he might exercise it for the benefit or use of Mrs. Roche. The court find from the evidence that Mrs. Roche had a complete donative intention toward her nephew, Schwoon, which actuated her in the transaction with the bank, and held that the papers in the case, taken as a whole, made "a complete declaration of trust,—one which needs no aid in equity to enforce it." The case is far from being parallel with the one under present consideration, but one feature of it gives it a direct application to Mrs. Dunn's claim. It distinctly appeared that Mrs. Roche, while taking care that the papers and records should make the right of her nephew complete to any moneys credited to the account in case he survived her, took the greatest pains to retain the control over the account, for all practical purposes, by retaining exclusive possession of the pass book. The rule of the bank printed in the pass book expressly provided that no depositor should have a right to demand any of his money "without producing the pass book, in order that such payment may be entered therein." Mrs. Roche, who was a very aged woman, four months before her death went with an old friend to the bank and drew $200 in money. It was on this occasion that she surrendered her first pass book and obtained a new one. She then delivered $175 of the money which she had drawn with the bank book to her friend, "with instructions to keep the money subject to her draft in such sums as she might choose, and to keep the bank book until her death, and then to deliver it to her nephew, the defendant Henry Schwoon." The argument was made that Mrs. Roche, in effect, had endeavored to make a testamentary disposition of property without making a will, or, in other words, that the exclusive control retained by Mrs. Roche during her lifetime made the whole transaction with the bank amount to a mere declaration of what she wished to have done with her property after her death. The learned vice chancellor, however, declines to support this contention: holding, in effect.that where there is a Joint estate in property, or a joint Interest in a contract, with a right of survivorship, the survivor takes by virtue of the legal title vested in him, and not by virtue of any testamentary declaration; and also holding, in effect, that the statute which prescribes the form of a valid testamentary declaration has no effect upon settlements of property which are valid under the law of trusts, even though the trust is created to accomplish precisely the same object as a legacy in a will.
I have preferred to deal with Mrs. Dunn's right to draw the money from the Emigrant Industrial Savings Bank strictly as a legal right, which she enjoyed as the survivor of the two persons with whom the bank contracted. Perhaps the same result could be reached by regarding what took place between the bank and Mrs. Kane and her niece as amounting to a settlement in the nature of a trust. Whichever of these two theories may be adopted, the result is the same. We have property legally or equitably vested by one person in another as a pure donation. The retention of control over the property during the life of the donor, and a reservation of power to consume the property and make the donative transfer of no value, do not affect the fact that a transfer of property by way of donation has in fact been made; nor does the fact that what has been done could also be accomplished by a legally executed will in any way affect what has been done. The test of the sufficiency of what I have called the external form of the attempted donation of property through the instrumentality of a contract with a life insurance company, an annuity company, a savings bank, or a private individual, seems to me to be found in the answer to the question whether the claimant, who asserts the validity of the donation, can, as against the insurance company, the annuity company, the savings bank, or the private individual who made the contract, enforce the contract, and recover the moneys due thereon. If he can so enforce the contract, the question whether, as against the alleged donor, who procured the contract to be made, or the estate of such donor, he can appropriate the moneys which he recovers to his own use, or must account for them, depends wholly upon whether or not there was a donative purpose,—whether or not his apparent legal or equitable right was vested in him for his own benefit, or for the benefit of the party who caused it to be so vested. A claimant holding such a right, which he can enforce as against the savings bank or other similar contracting party, seems to be in the same position as the bolder of a chattel which has been delivered to him. Dennin v. Hilton, supra. The question whether there was a gift or not is determined in each case solely by the purpose of the alleged donor, as the same may be proved by competent evidence.
In this whole discussion I have practically treated as one the various forms of these "donative savings bank contracts which sometimes make the bank contract with the depositor in the character of trustee for the person who afterwards claims to be donee, and sometimes make the bank contract with two persons, one of whom is the alleged donor, and the other the alleged donee. Whatever the form of the transaction may be, I think the test of its sufficiency in connection with the necessary donative purpose to effect a gift depends upon the question whether a legal or equitable right survives in the claimant upon the death of the alleged donor, which he (the claimant) can enforce as against the savings bank or other contracting party. Whether the claimant can enforce his apparent right when the estate of the alleged donor intervenes depends upon whether or not there was a donative purpose. The benefits of the contract right (like the chattel which the claimant holds by delivery from the alleged donor in his lifetime) he must surrender, unless he can prove the donative intention.
One somewhat minute feature of the case at bar must not be overlooked. The savings bank received Mrs. Kane's money, and in consideration thereof promised to pay money to Mrs. Kane or to the complainant. Whether a parol contract is joint or several, or whether it is made with one person or with more, may be sometimes a difficult question of fact. 1 Chit. Pl. 9. In this case I think the proof is clear that the savings bank entered into a contract with Mrs. Kane and the complainant jointly, with the usual incident of survivorship. A promise to pay money to either of two persons is a promise to them jointly. Osgood v. Pearsons, 70 Mass. 455; Walrad v. Petrie, 4 Wend. 575. Either can collect, the debtor can discharge himself by payment to either, but both must sue, and after the death of one the survivor alone can sue. Mrs. Kane and the complainant assumed a relation to each other with reference to this bank account like that of partners. The bank had no concern with their prior relations to the former bank account. Whether the complainant had acquired an interest in that account or not made no difference to the bank. It would have been a mere empty form if Mrs. Kane had drawn the money, given the complainant a portion, and then both had deposited the whole fund to the credit of the new account. Such a formality could not affect the nature of the contract, from the point of view of the bank. It may be conceded that Mrs. Kane, when changing the form of her account, might have alone entered into a contract with the bank which would provide that the complainant might as her (Mrs. Kane's) agent, draw moneys from the account, and for the purpose of such a contract the complainant's signature might be necessary on the bank's books. But if suchhad been the intention of the parties, they could easily have manifested it. The bank plainly accepted both parties as depositors, and as such contracted with them. The word "or" was used to enable the bank to discharge its debt to both by payments to either, as the proofs plainly show. The intention of Mrs. Kane to establish a direct contract relation between the complainant and the bank is too clear for argument. Such an intent cannot be defeated merely because the word "or" was used instead of the word "and," for the special reason above indicated. All the evidence in this case fully establishes a formal joint contract between Mrs. Kane and the complainant, on the one hand, and the bank on the other. Upon Mrs. Kane's death the right of action survived in the complainant. The complainant had a right to the possession of the pass book, and, if she were prevented by accident or design from complying with any by-law of the bank requiring production of the pass book in order to draw money,—if there was such a by-law in this case, and the bank would not waive it,—then she would be in the position and have the remedies of a depositor whose pass book has been lost or destroyed.
I shall advise a decree directing that the defendant the Commercial Trust Company pay the amount credited to the account in question to the complainant.