The principal question in controversy is whether the entire sum of $2,090, on deposit in the Dime Savings Bank of Norwich, belongs to the estate of Sarah A. Goodrich, or whether one half of it belongs to her three daughters whose names appear, respectively, with that of their mother in the three deposit books. This money belonged to Sarah A. Goodrich, and was on deposit in her name in said bank on the 24th of September, 1895, and the title of said three daughters to a part of said sum depends wholly upon the question of whether there was a valid gift of it to them by their mother.
The term "gift," which is more appropriately applied to personal property, is the transfer of property without consideration. The two requisites of a valid gift are "a delivery of the possession of the property to the donee, and an intent that the title thereto shall pass immediately to him." Guinan's Appeal,
In the case of Burton v. Bridgeport Savings Bank,
In the cases above cited in which the gift was sustained, it was found that the donor intended a present gift, and these cases all serve to show that the fact that upon the books of the bank and upon the pass-books the deposit stands in the name of the donor without any written assignment or order to pay to the donee, is not conclusive upon the question of whether there has been a perfected gift to the one to whom the deposit book has been delivered; and that the fact that the depositor caused the deposit to be entered upon the bank-books in the name of the claimed donee, and that he signed a written order for its payment to such donee, does not perse constitute a gift, when the depositor retains possession of the bank-book; but that the controlling fact in such cases is the real intention of the parties as gathered from all the circumstances.
As to the proof required to show an executed gift, "in general, it should be observed that the actual intention of the parties to the transaction is the main issue; and that whatever in the surrounding circumstances tends to throw light upon this intention should not be disregarded." 2 Schouler on Pers. Prop. (3d ed.) §§ 93-101. The following are some of the many decisions in other States to the effect that the actual intent of the parties is a controlling fact in deciding whether, in cases of the character before us, there has been a perfected gift. Beaver v. Beaver,
In the present case the court has found that in making the transfer as it was made no present gift was intended by the decedent, and that she "did not intend during her life to part with her control over this money, or her interest in it, or any portion of it," and that at the time of the transfer she "desired and intended to keep control of the *643 whole of it while she lived, and if any of it was left she wanted it to go after her death to the three daughters before mentioned;" and the trial judge further says in his finding: "I do not find that she ever altered her intention to keep such control over this money."
With the evidence of the bank-books and the entries therein before it, indicating an intention on the part of Mrs. Goodrich to make a present gift of an interest in this money to her daughters, the court has found, in effect, that the transfer was not made for that purpose, but was made in the form and language stated, with the intention that the control of all the money should be retained by Mrs. Goodrich, and that until her death her daughters should take no interest in it.
The finding states that in September, 1895, the deceased gave to her son-in-law, Josiah H. Smith, a written order, payable to him, for the money then on deposit in her own name, and also her bank-book, and instructed him that she wished to have it redeposited in certain proportions named by her; that she wished to retain control of it, and that "when she was through with it" she wished it to "revert to her three daughters," and "to go to them at her death and so that they could then draw the money represented by those three deposit books," and that she desired that it should be so expressly stated in the deposit books. Smith went to the bank and presented the order and book and informed the officers of the bank what Mrs. Goodrich desired, and requested them to so arrange the deposit. He was told by the bank officers that the entries could not be made in the deposit book in the specific language requested by Mrs. Goodrich, but that "if they put the money in the names of both mother and daughter, as they in fact did place it, it would have the effect that Mrs. Goodrich desired. Mrs. Smith believed this," and each of the three books was made out in account with one of the three daughters and her mother, "payable to both" and he returned them to Mrs. Goodrich and told her that it was done as she desired. Mrs. Goodrich retained possession of the books, except as they were entrusted to her daughters for safekeeping or to have the interest added, and excepting as *644 interest was added the deposits remained unchanged until Mrs. Goodrich's death in 1898.
As the three bank-books were in Mrs. Goodrich's possession for some years after these deposits were made, we may assume that she knew and approved of the form in which they were made; but the facts still remain, that neither she nor her agent Smith consented that the deposits should be so made with the understanding that any present interest in the money would vest in the daughters. Both she and Smith, who, we must assume, honestly endeavored to carry out her purpose, intended that the deposits should be made in such a way that the daughters would take no interest until their mother's death. That this was the purpose of the transfer was understood by all the parties, including the bank officers, and it does not appear that the daughters themselves supposed that it was made for a different purpose. If it had been the intention of Mrs. Goodrich in making these deposits that a joint interest with herself in the money should immediately vest in her daughters, the gift would not have failed because she retained possession of the bank-books. Her possession as a joint owner would have been regarded as the possession of the other joint owners. McElroy v. National Savings Bank,
As the answers of the witness Martha A. Goodrich to certain questions admitted upon cross-examination against the objection of her counsel, could not have been harmful to the appellee, it is unnecessary to consider whether the inquiries themselves were admissible.
The fact that the Court of Probate allowed the following charges in the account of the administratrix, viz, "Administration *645 fees, 5 per cent, $75.74," and "Traveling expenses $10.50," after having been informed as to the services actually rendered and the items of traveling expenses, and after having presumably found the charges reasonable and proper, was not a sufficient reason for reversing the order of the Court of Probate accepting the account, no question having been made in the Superior Court as to the reasonableness of the charges.
While there is no law in this State permitting an administrator to charge for his services a certain percentage of the value of the estate he has administered, it would not be unlawful to allow a charge for services which was reasonable, when the only objection was that it was made in that form. The allowance of the account without a more detailed statement of these particular items was not a violation of the rule as laid down in Fairman's Appeal,
The record before us shows that there was evidence before the trial court to sustain its finding that the decedent did not at any time intend to make a present gift to her daughters of any interest in the deposits in question, and that she retained possession of the bank-books excepting as she entrusted them to her daughters either for safekeeping or for the purpose of having the interest added. There was therefore no error in the refusal of the trial court to correct the finding as requested by the appellee.
There was error in the judgment of the trial court that said items of $75.74 and $10.50 were not lawfully allowed by the Court of Probate as charges in the administration account, and to that extent it is reversed.
There was no error in the judgment of the trial court reversing the order and decree of the Court of Probate upon the ground that in her administration account the full amount of said deposits should have been charged against said administratrix as belonging to the estate of the deceased.
In this opinion the other judges concurred; BALDWIN, J., with hesitation.