te the applicable rules of law. From Ankeny v. Lieuallen, 169 Or. 206, 218, 113 P.2d 1113, 127 P.2d 735, we take the following: "The doctrine that where, pursuant to a contract, a husband and wife, or any two persons, make mutual or reciprocal wills, each making a testamentary disposition in favor of the other, the making of one being a consideration for the making of the other, the wills are valid, and, unless revoked during their joint lives, the will of the survivor becomes irrevocable after the death of the other if the survivor takes advantage of the provisions made by the other, and that the courts will not permit the survivor, if the rights of any third party would be injuriously affected thereby, to violate the mutual agreement, is well established by the following decisions of this court: Stevens v. Myers, 91 Or. 114, 177 P. 37, 2 A.L.R. 1155; Schramm v. Burkhart, 137 Or. 208, 2 P.2d 14; Tate v. Emery, 139 Or. 214, 9 P.2d 136; Taylor v. Wait, 140 Or. 680, 14 P.2d 283; Lay v. Proctor, 147 Or. 545, 34 P.2d 331; Cooke v. King, 154 Or. 261, 61 P.2d 429, 107 A.L.R. 881." The above quotation states the rule accurately except for that portion which says that "the will of the survivor becomes irrevocable," which portion was probably not meant literally.

Among the essential elements of such a gift are the following: There must be a donative intent that a gift go into immediate and absolute effect with nothing left undone; there must be delivery with the transfer of possession and dominion over the subject of the gift; and there must be acceptance by the donee. Beach v. Holland, supra; First National Bank of Portland v. Connolly, 172 Or. 434, 138 P.2d 613; Lay v. Proctor, 147 Or. 545 at 560, 34 P.2d 331 at 337; Grignon v. Shope, 100 Or. 611, 197 P. 317. There is uncontradicted oral evidence tending to indicate that the stock was transferred with a donative intent but we consider the written instruments decisive on that issue.

"To consummate a gift there must be a transfer of possession and of the dominion over the subject of the gift." Lay v. Proctor, 147 Or. 545, 560, 34 P.2d 331. The question whether the deposit of money in a bank by one person in the name of another constitutes a gift has been frequently before the courts, though, as far as we are aware, it has arisen in this state but once.

The requisites of a valid gift inter vivos are well established. There must be delivery of the thing given with a donative intent and complete stripping of the donor of dominion over it. Lay v. Proctor, 147 Or. 545, 34 P.2d 331; Allen v. Hendrick, 104 Or. 202, 206 P. 733. Where the property is capable of manual delivery such delivery is essential. Where this is not the case a symbolical delivery will suffice, as, for example, the delivery of a key to a box in which the thing given is kept under lock and key. Delivery of the passbook with donative intent no doubt constitutes delivery of a savings deposit (24 Am. Jur., Gifts 785, § 104); but it is established by numerous decisions and conceded by counsel for defendant that, where a joint bank account is created, accompanied by an agreement such as that signed by the plaintiff and the deceased in this case, retention of the passbook by the donor is not controlling as against the claim of a gift in praesenti, though it may be considered upon the question of whether there was a donative intent.

Respondents counter with the thought that there was a fiduciary relationship existing between the intestate and appellants, hence, the burden of proof was upon them to overcome the presumption that the gift was fraudulent as obtained through undue influence. ( Smith v. Smith, 84 Kan. 242, 114 P. 245, 35 L.R.A., N. S. 944; Coblentz v. Putifer, 97 Kan. 679, 156 P. 700; Campbell v. Genshlea, 180 Cal. 213, 180 P. 336; Blackburn v. Jones, 59 Utah 558, 205 P. 582; Meyer v. Campion, 120 Wn. 457, 207 P. 670; Lay v. Proctor, 147 Ore. 545, 34 P.2d 331; In re Miller's Estate, 16 Cal.App. (2d) 141, 60 P.2d 492; Overstreet v. Beadles, 151 Kan. 842, 101 P.2d 874; Floyd v. Floyd, 11 Fed. (2d) 841; Thaw v. Thaw, 27 Fed. (2d) 729.) The donor's intent to make a gift must be clearly established.

ct, the performance of which by one party and acceptance by the other has taken it out of the statute of frauds: 40 Cyc. 2117, 2118." The doctrine that where, pursuant to a contract, a husband and wife, or any two persons, make mutual or reciprocal wills, each making a testamentary disposition in favor of the other, the making of one being a consideration for the making of the other, the wills are valid and, unless revoked during their joint lives, the will of the survivor becomes irrevocable after the death of the other if the survivor takes advantage of the provisions made by the other, and that the courts will not permit the survivor, if the rights of any third party would be injuriously affected thereby, to violate the mutual agreement, is well established by the following decisions of this court: Stevens v. Myers, 91 Or. 114, 177 P. 37, 2 A.L.R. 1155; Schramm v. Burkhart, 137 Or. 208, 2 P.2d 14; Tate v. Emery, 139 Or. 214, 9 P.2d 136; Taylor v. Wait, 140 Or. 680, 14 P.2d 283; Lay v. Proctor, 147 Or. 545, 34 P.2d 331; Cooke v. King, 154 Or. 261, 61 P.2d 429, 107 A.L.R. 881. As above stated, the farm land which Lieuallen mortgaged to the bank was separately owned by him at the time this contract was entered into and these mutual wills were executed but it was a part of the farm lands referred to in each of said instruments.

In Fischer v. Peters, 147 Or. 426, 441, 34 P.2d 305, it was held that a stepdaughter of the deceased, in a suit by the administrator for an accounting, had the burden of proving by clear and convincing evidence receipt of a gift from the deceased, where the deceased was aged and infirm and had placed herself in the stepdaughter's care. In Lay v. Proctor, 147 Or. 545, 34 P.2d 331, the syllabus reads: "Gift obtained by person standing in confidential relation to donor is prima facie void, casting burden on donee to establish to satisfaction of court that it was free, voluntary, unbiased act of donor."