206 A.D. 61 | N.Y. App. Div. | 1923
There are a few familiar principles of the common law which, for the purposes of this case, require restatement. The requisites of a valid gift are an intent to make an immediate gift, a delivery of the thing given, and an acceptance of the gift. The delivery may be either manual or symbolical. If the subject of the gift is a chose in action, such as a bank account, a delivery of the instrument which evidences it, such as a bank pass book, is sufficient. The delivery of the symbol, however, must be for the purpose of accomplishing a complete change of possession, and if its delivery is consistent with an intent to retain title there is no gift. (Beaver v. Beaver, 117 N. Y. 421; Matter of Bolin, 136 id. 177; Kelly v. Beers, 194 id. 49.) In the Beaver case there was a deposit made in a savings bank by a father in the name of his son. The pass book was given by the bank to the father and always retained by him. It was held that there was no gift for the two reasons that (1) there was no delivery of the pass book to the son, and that (2) the intent to give was not sufficiently evidenced by a deposit to the credit of the son’s name. In the Bolin case a mother, Julia Cody, having a daughter, Bridget Bolin, redeposited a savings bank deposit owned by her in an account entitled “ Julia Cody or daughter, Bridget Bolin.” The pass book came into the hands of the daughter who retained possession of it. It was held that there was no gift; that the custody of the pass book by the daughter was consistent with a motive of convenience; that the deposit in the joint names raised no presumption of the existence of an intent to give.
The facts in this case are, that Elizabeth Tripp Fonda, aged eighty-two, sufficiently ill to be confined to her bed, a few weeks before she died, handed to her nephew, Milton P. Miller, a savings bank pass book with a note addressed to an official of the bank. The note read as follows: “ Dear Sir: Kindly make my nephew my survivor of what I have in this book and oblige, Very sincerely, Elizabeth B. Fonda. Milton P. Miller, nephew.” The nephew, as directed, delivered the pass book and note to the official, who, contrary to instructions, wrote on the bank book, after the name “ Elizabeth B. Fonda,” the words “ or Milton P. Miller.” The
The common-law rules in relation to gifts were modified, so far as they applied to bank accounts, by section 114 of the Banking Law of 1892, as amended by chapter 247 of the Laws of 1907, which Avas revised by section 144 of the Banking Law of 1909 and by section 249 of the Banking Law of 1914. That section makes certain proAdsions in relation to savings bank deposits of which it is sufficient to quote the following: “ When a deposit shall be made by any person in the names of such depositor and another person and in form to be paid co either or the survivor of them, such deposit and any additions thereto made by either of such persons after the making thereof, shall become the property of such persons as joint tenants.” This provision evidently modifies the laAV to make unnecessary a delivery of a symbol of the deposit. Together with other provisions not quoted it gives to a deposit in the form named the value of raising a presumption of an intent to make an immediate gift. (Clary v. Fitzgerald, 155 App. Div. 659.) However, as the provisions are in derogation of the common law they must be strictly construed. It has accordingly been held that the form of the deposit must be in strict conformity Avith that expressed by the statute, or the statute will not apply. (Hayes v. Claessens, 189 App. Div. 449.) Moreover the presumption merely makes a prima facie case Avhich evidence to the contrary will overcome. (Matter of Buchanan, 184 App. Div. 237.) In our case the first writing upon the pass book, to Avit, “ Elizabeth B. Fonda or Milton P. Miller,” was not in the statutory form. The second writing, “ pay to either or the survivor of either,” closely approximates that form. It was not, hoAvever, the precise form chosen by the depositor. She inquired if there were not some stamp which would make the deposit payable to either and said she Avanted it that way. She said nothing about inserting the words “ or the suivivor of either ” Avhich are an essential pail of the statutory form. She did not, therefore, select the words used. Moreover, Milton P. Miller himself stated
The decree should be affirmed, with costs against the appellant.
Present — H. T. Kellogg, Acting P. J., Van Kirk, Hinman and Hasbrouck, JJ.
Decree unanimously affirmed, with costs against the appellant.