STEVENS, V. C.

Bill by Samuel Gordon, administrator of Matilda Gordon, deceased, against Ella R. Toler, to determine the right to a certain savings bank deposit. Decree for complainant.

Edwin B. Goodell, of Montclair, for complainant.

Charles H. Halfpenny, of Newark, for defendant.

STEVENS, V. C. Matilda Gordon, complainant's testatrix, had an account in the Bloomfield Savings Institution. On July 8, 1912, and about eight months before her death, she went to the bank with her sister, Ella R. Toler, and there signed the following paper:

"Bloomfield, N. J., July 8, 1912.

"The Bloomfield Savings Institution is hereby authorized and directed to add the name of my sister, Ella R. Toler, to my account No. 10,884, giving equal and joint rights and privileges in said account and make the funds now on deposit or hereafter deposited payable to either of us or to the survivor. Matilda Gordon.

"Witness: Howard Biddulph."

The authority thus signed was on the printed slip the bank was accustomed to use. "The intent," says Mr. Biddulph, the treasurer, "was to make the account payable to either [sister] or to the survivor." Having this authority, he wrote under the name "Matilda Gordon" in the passbook the words "or Ella R. Toler," and stamped under both panics the further words, "Payable to either and to the survivor." We have no evidence of what Mrs. Gordon said at the time, nor any evidence as to what she, in fact, intended, except her subsequent declaration and acts. Sarah Gordon, a cousin of her husband, testifies as follows: "I asked her: 'Why did you have the name put to the bank book?' She said: 'Because I have this asthma, and sometimes I might be so that I couldn't talk, and she could draw the money out of the bank, because the children couldn't draw it, because they weren't of age.' And I said—I asked her—if she wanted her to have the money. She said, 'No; not a bit of it.'" The undisputed evidence is that the bank passbook remained in her possession up to the time of her death, and the entries therein show that on eight occasions, between November, 1912, and December, 1913, she drew out sums varying from $10 to $65.

Article 7 of the by-laws, as printed in the passbook provides that: "No person shall have the right to demand or receive any sum as principal or interest without producing his passbook; that the amount demanded and paid may be entered therein." The contract made by the bank was therefore, in effect: "I will pay the sum deposited or any part thereof to Matilda Gordon or Ella R. Toler and the survivor, on production of the passbook."

The only reasonable inference to be drawn from the above facts is that Mrs. Gordon intended to retain and did, in fact, retain, control of the fund during her lifetime; and that the above entry was made only to facilitate the drawing of the money. There was no completed gift of it inter vivos. The case of Skillman v. Wiegand, 54 N. J. Eq. 198, 33 Atl. 929, and the other cases cited by counsel are conclusive on this head.

The question then arises: Was there a gift of what remained at her death? The effect of the word "survivor" was considered in Stevenson v. Earl, 65 N. J. Eq. 721, 55 Atl. 1091, 103 Am. St. Rep. 790, 1 Ann. Cas. 49. It was there held by the Court of Appeals that an act essentially testamentary could not be effectuated by a paper like that in controversy, because not made in the manner prescribed by the statute of wills. This decision would undoubtedly rule the present controversy, as far as the question of gift to take effect at death is concerned, were it not for section 27 of the act, concerning savings banks, enacted since it was decided. The section reads as follows: "When a deposit has been or shall hereafter be made, in the name of two persons, payable to either, or payable to either or the survivor, such deposit, or any part thereof, or interest or dividends thereon, may be paid to either of said persons, whether the other be living or not, and the receipt or acquittance of the person so paid shall be a valid and sufficient release and discharge to the bank for any payment so made." The question is whether this section was intended to do anything more than protect savings banks. It certainly was not designed to make that a gift which, according to the evidence, was not a gift, present or future, but only a convenient way of drawing money, and it ought not to be construed as an implied repealer pro tanto of the Wills Act if the two statutes may stand together. It is manifest that they may. The survivor may hold in trust for the estate of the deceased depositor, and the bank, taking the receipt of the surviving depositor, may be discharged from liability for what it pays out. It is not to be presumed that the Legislature, under an act entitled "An act concerning savings banks," intended, if it could constitutionally intend, to repeal the Wills Act in part, and thus to dispense with those safeguards which have so long been deemed essential to protect the estate of adecedent. No such construction is necessary. Garrick v. Taylor, 4 De G., F. & I. 159, 165.

But, even if the act should be held to have a wider scope, it cannot be held to have had the effect of giving a beneficial interest to Mrs. Toler, if the evidence does not show a donative purpose. Giving to the word "survivor" its fullest effect, the intent to make a gift is inconsistent with the repeated acts of Mrs. Gordon in drawing out money, and especially with her failure at any time to deliver the passbook to Mrs. Toler. Not only is there no proof of its delivery animo donandi, but no proof of its delivery for any purpose whatever. As the contract was to pay on the production of the book, delivery of it was, under the circumstances, essential to the completion of the gift. An incomplete gift is never perfected by a court of equity.

The complainant is entitled to a decree.