By the Court, T. R. Strong, J.
The money in question, before it was deposited in the banlc, belonged to the plaintiff’s intestate, the husband of the defendant. It was the proceeds of a sale by him of his house and lot, and some of his furniture, in which it does not appear that the defendant had any legal interest. Her labor had contributed to the acquisition of the property, and in a greater degree than that of the intestate, according to his declaration to one of the witnesses; but he, as her husband,.was entitled to her services and earnings, and the property belonged to him. There is evidence in the case, on the part of the defendant, that the intestate, 'in conversation about the sale of his property, and the money, stated that he had put the money in the bank, and it belonged to the defendant ; but there is also evidence by the defendant, of declarations of the intestate that he had fixed it so his folks could not take the money if he should die; that his wife had put her name in the bank book, so she could take it at any time; that he had put it in the bank in his and his wife’s name. Viewing all the evidence on this subject, it is apparent the intestate did not mean to be understood that the money actually was the defendant’s, but only intended to convey the idea that he had, as he supposed, placed the money in the bank on such terms that the defendant, and not his father, or any of his father’s family, could obtain it if she survived him. It is manifest that in making the deposit the intestate did not in*569tend to give the money to the defendant; for although he first stated to the officers of the bank that he wanted to deposit it in the name of his wife, it is evident from the conversation which followed, and what was done, that he supposed he would not thereby divest himself of a right to take the money frgm the bank, and that he desired the deposit to be so made that either he or the defendant could withdraw the money. Clearly there was no valid gift. A delivery of the money, or at least of the evidence of the deposit, investing her with the full control over it, was indispensable to such a gift. And there is no pretense, or ground for a claim, that the intestate subsequently made a gift of the money to the defendant. If then the defendant is entitled to retain the money, it must be because the deposit was in effect to the joint credit of the intestate and herself, and that she is the surviving creditor. The intestate, although the sole owner of the money, might, except as against the claim of his creditors in the absence of other assets to pay them, by depositing the money to the credit of himself and the defendant jointly, secure to her the whole on her surviving him. He clearly desired that in that event she should have the whole; but that is not sufficient to entitle her to it unless the legal means to effect the object were pursued. Like an intention to make a gift, unexecuted by a delivery, it is fruitless. The only evidence in regard to the transaction with the bank, in the deposit of the money, aside from the declarations of the intestate already referred to,- is derived from the book keeper of the bank, and the pass book taken by the intestate. He testified, in substance, that on the intestate saying he had some money which he wished to deposit in the name of his wife, who was present, the witness inquired whether either had an account with the bank, and was told that the intestate had; that he turned to the account and told him it did not make any difference whether the money was in her name or his; that it could be so put in that either could draw it. It was then credited to the name of the intestate, posted under his old account, a passbook charging the bank and crediting him with the money was delivered to him, and he and the defendant entered their names in the signature *570book of the bank, opposite which the clerk of the bank wrote the words “ to be drawn by either.” It does not appear that the intestate expressed in words, his assent to have the deposit to the credit of his own name solely, but such assent sufficiently appears from what was done, in the absence of any objection by him. The book keeper further testified: “ the pass book is held by the depositor as a voucher, and the only voucher, until the whole amount is drawn from the bank, and then it is given up to the bank.” Taking this testimony of the book keeper, in connection with the declarations of the intestate, and regarding the claim of the defendant as favorably as I am permitted to do, it appears to me the court cannot properly hold that the defendant was, in respect to the deposit, a creditor of the bank. The intestate was the sole creditor. He deposited his own money to his individual credit. His name only appeared in the books of the bank as the creditor. The entry of the names in the signature book, with the words added by the clerk, formed no part of the contract of deposit. The object of that was, that the bank might have evidence of their handwriting, and to show that the defendant was authorized to receive the money. The appropriate mode of withdrawing the money would be, by presenting the pass book and giving a receipt for the money in the name of the intestate. This mode was pursued when the money was obtained by the defendant; she delivered the pass book, and gave a receipt expressing by the signatures to be for the intestate by the defendant.
The difficulty with the defense is, that the intestate misjudged as to what was necessary to be done to secure this money to the defendant if she outlived him. He may have been misled by the advice of the book keeper; but it was intended by him after the advice, that the business should be done as it was done. The business was done in such a manner that the defendant, as well as the intestate, so long as the authority to her was unrevoked, could get the money; but her authority terminated with the death of the intestate. She was a mere agent in the matter, without any beneficial interest. It is not in the power of the court to relieve the defendant, and give her *571the money, because the intestate intended she should have it. It can only pronounce the law upon the actual transaction between the intestate and the bank, leaving the case to swell the number of those with which the books abound, where parties have failed by their acts to carry out their intentions.
[Monroe General Term,
March 2, 1857.
The cases of Stanwood v. Stanwood, (17 Mass. Rep. 57,) Phelps v. Phelps, (20 Pick. 556,) Ames v. New, (5 Metc. 320,) and Fish v. Cushman, (6 Cushing, 20,) throw some light on this case, but are all clearly distinguishable from it.
In my opinion the plaintiff is entitled to judgment on the verdict.
T. R. Strong, Welles and Smith, Justices.]