2 Bradf. 34 | N.Y. Sur. Ct. | 1851
The intestate, William Harkin, deposited with the Rt. Rev. Bishop Hughes $1,200, in the joint names of himself and wife, taking as evidence of the deposit a certificate stating that “William and Ellen Harkin have $1,200 on deposit with the Rt. Rev. Bishop Hughes, to draw interest at five per cent, and to be returned at any time after two weeks’ notice.” Two other sums of $100 each, were subsequently deposited in the same manner. Ellen Harkin survived her husband; and the point is now submitted, whether the sums so deposited, are to be accounted for as part of the estate of her husband, or belonged a moiety to each, or to her by right of survivorship.
It appears that the deposits were made in this manner for a series of years,—the first certificate being in the same form; and when the amount reached $1,200, it was surrendered and a new certificate issued. The account in the books of the Bishop, was also kept in the names of husband and wife, in accordance with the certificate. There is no ••evidence beyond the certificate, except the impression of
I must, therefore, decide the case upon the face of the certificate, which recites that William and Ellen Harkin had deposited $1,200, to draw interest at five per cent., and to be returned at any time after two weeks’ notice. In form it was a joint deposit, and if the depositors had not been husband and wife, there can be no doubt that such would have been its legal character.
The presumption of such a form is, that it was not without design. The transaction itself, the manner in which the deposit was made and the certificate taken, afford satisfactory evidence of the object or purpose. In Christ’s Hospital vs. Budgin, 2 Vernon, 683, the husband had lent out money in the names of himself and his wife, upon bonds and mortgages taken in their joint names. The Lord Keeper regarded the wife as a joint purchaser, and as entitled to the securities by survivorship. In Dummer vs. Pitcher, 5 Simon, 35, a testator, before making his will, transferred two sums of bank annuities into the names of himself and wife, and afterwards bequeathed all his funded property to trustees. He subsequently purchased further sums in the stocks, in the names of himself and his wife, and died in her life-time, having no stock except that above-mentioned, exclusive of which his property was not sufficient to pay his legacies. It was held by Sir Lancelot Shadwell and affirmed on appeal by Lord Brougham, that the wife by smwiving her husband became absolutely entitled to the sums of stock, there being “ nothing to show that the husband intended that the transfers should have any operation but what they legally had.” In Coates vs. Stevens, 1 Yo. & Coll., Exqr. R., 66, the testator bequeathed £2,200 stock, “ his property” standing in the joint names of himself and wife; and Lord Abinger held that the stock was the absolute property of the wife surviving, saying, “ I am of opinion, upon all the decisions, that this is the absolute-
The characteristic features of this transaction are analogous to those of the cases which I have cited. The deposit is in the nature of an investment: the money is not to be preserved m specie, but to be employed, and interest thereon paid by the depositary. The investment is made with the privity of the husband, in the name of himself and wife; and the certificate of the deposit or investment, is taken in the same names. This was his own act, and establishes a gift to her in case she survived; and he not having recalled it or converted the property into possession in his life-time, and the legal title being in her by survivorship, it is, in the language of Lord Abinger, her “ absolute property.”
But it is said that at law, gifts from the husband to the wife are void. That relates, however, to direct gifts, not to transactions through the medium of a third person; and besides, the rule does not prevail in equity, which sup
