Pitney, Y. C.

Parol evidence was given as to the relation between Mrs. Roche and the defendant Schwoon, and as to her object in making the change which she did in her bank account. The evidence satisfies me that she had a strong regard for Schwoon by reason of his kinship, and by reason of his having lived in her family for several years while an apprentice to her husband.,

It also satisfies me that after she had executed the will and deposited it in the hands of the executor she became dissatisfied with it and desired to destroy it and make Schwoon her sole beneficiary, and that she attempted to get possession of the will from the executor for that purpose, but failed, either by reason of misunderstanding on his part of her desire in that respect, or because she was afraid that she would offend him by demand*507ing outright that the will should be destroyed. I do not find it necessary to adopt a construction of the testimony on this subject which will attribute to the executor a willful disregard of the testatrix’s desire in this respect.

Be that as it may, however, the evidence thoroughly satisfies me that she sent for Schwoon for the express pronounced purpose of having her little fortune, in the savings bank placed at his disposal. She was past eighty-one years old, had suffered a slight stroke of paralysis, which rendered her locomotion somewhat laborious and difficult, and she was conscious that she had not long to live, but she retained her mental faculties without serious impairment until an apoplectic seizure, which occurred two days before her death.

Some time before that she sent her friend, Mrs. Rengier, to the bank to inquire whether the people at the bank were sure that her deposit there was in such shape that her nephew could get it after her death,’ and received a message from the bank that it was perfectly safe.

There is no reason to doubt that she fully understood the character of the contract which she signed in the books of the bank. Mr. Clark, the witness thereto, who was an officer of the bank, swears that he has no recollection of this particular transaction, but the Piaking of such contracts was quite frequent, so. that he witnessed a great many, and his invariable practice was to carefully explain the document to the party signing it, and he is quite sure that he did so in this case.

The mouth of Schwoon, who was present at the transaction, is closed as against the executor, but he swears that he was present, and that there was a conversation between Clark, the witness, and his aunt.

The attempt by the executor to prove that the account was put in the joint names of the aunt and nephew for convenience in drawing money for'her wants in case of her disability, I think fails. The nephew lived in Brooklyn, was closely confined by his business, and it was not convenient for him to cross over to Hoboken to assist her in that respect.

The question raiséd is an important one,' in’ view of the frequency of such transactions.

*508I dealt with one in Skillman v. Wiegand, 9 Dick. Ch. Rep. 198, where many of the authorities are collected. 'Those found in the English reports arise principally out of procuring government or other stock to he issued to two persons jointly, with the right of survivorship; and many cases are collected in a note by the late Mr. Stewart to the case of Smith v. Speer, 7 Stew. Eq. 336. I have found only one ease in England of a joint bank account, namely, Marshal v. Crutwell, L. R. 20 Eq. 328, before Sir George Jessel, master of the rolls. The circumstances of that case were quite similar to those in Skillman v. Wiegand, and the result was the same.

I also dealt with the question in the recent unreported case of Dennin, Administrator, v. Hilton (since reported, 50 Atl. Rep. 600), where I awarded the fund to the survivor. The evidence of the intention of the decedent to make a gift to the survivor was quite as clear and strong as in the present case; but the two cases differ 'in this: In Dennin v. Hilton there was no written contract signed by the original owner, such as we have here, but the bank pass-book was delivered by her in her lifetime to the survivor, and held by him at her death.

The objection to this mode of making a gift is that it is testamentary in its character, and in effect a will, and therefore void under our statute. In support of this conclusion is pointed out the circumstance that the power of disposition by the donor continues during his or her lifetime.

But this circumstance has not deterred the 'courts from giving effect to such arrangements. This has been done on two grounds—first, that a joint estate or interest is created with an express right of survivorship, which operates naturally and legally upon whatever of the fund remains unused at the death of the donor; and second, on the ground of a completed trust.

The authorities on this subject are Ray v. Simmons, 11 R. I. 266, 15 Am. L. Reg. (N. S.) 701, and cases cited in notes; S. C., 23 Am. Rep. 447, and eases cited in notes; Howard v. Savings Bank, 40 Vt. 597; Gerrish v. New Bedford Institution for Savings, 128 Mass. 159; Martin v. Funk, 75 N. Y. 134, where all the’cases up to that date are collected in the arguments of the counsel and the opinion of the court'.

*509In our own state I refer to Green v. Tulane, 7 Dick. Ch. Rep. 169. There, as here, the evidence of the debt was deposited by the donor with a third party, accompanied by a written direction signed by the donor to deliver the same to the donees at the death of the donor.. It was held, on the authorities cited, that the trust was complete.

In the present case the document signed by the donor in the books of the savings bank, the executed direction to put the account previously standing to her credit in a new account in the joint names of the donor and donee, with right of survivor-ship, and the delivery of the evidence of the indebtedness—the pass-book—to a third person for the donee, makes a complete declaration of trust—one which needs no aid in equity to enforce it.

The bank would have been perfectly justified in paying the amount due on the book to the donee upon presentation of the book. This was distinctly held, and I think rightly, in Metropolitan Savings Bank v. Murphy, 82 Md. 314.

I will advise a decree that the fund be paid to Schwoon. As there is no fund in the hands of the executor, it is idle to decree costs against him. The complainant will, of course, receive its costs out of the fund, unless the same have already been paid.