| Mass. | Oct 23, 1885
Mrs. Ford, the claimant’s intestate, deposited her money in a savings bank in the names of the plaintiffs, and the claimant is entitled to it unless his intestate made a gift to each of the plaintiffs of the money deposited in her name. Broderick v. Waltham Savings Bank, 109 Mass. 149" court="Mass." date_filed="1872-01-15" href="https://app.midpage.ai/document/broderick-v-waltham-savings-bank-6416749?utm_source=webapp" opinion_id="6416749">109 Mass. 149. McCluskey v. Provident Institution for Savings, 103 Mass. 300" court="Mass." date_filed="1869-11-15" href="https://app.midpage.ai/document/mccluskey-v-provident-institution-for-savings-6415905?utm_source=webapp" opinion_id="6415905">103 Mass. 300. To constitute a gift to the plaintiff, the deposit must have been put in her name with the intention of making a gift of it to her, and it must have been accepted by her. The difference between this case and Sweeney v. Boston Five Cents Savings Bank, 116 Mass. 384" court="Mass." date_filed="1874-12-03" href="https://app.midpage.ai/document/sweeney-v-boston-five-cents-savings-bank-6417900?utm_source=webapp" opinion_id="6417900">116 Mass. 384, is, that in that case the donee was present when the deposit was made, and the donor delivered the deposit-book to her. The delivery and acceptance of the book were conclusive evidence, both of the intention of the donor to make the gift, and of the acceptance of it by the donee.
In the case at bar, the deposit was made without the knowledge of the donee, and the deposit-book was retained by the donor. The intention of the donor to make a gift is open to inquiry; and the acceptance of it by the donee completes a contract between her and the bank, and cannot be presumed, but must be shown. If the evidence shows that the donor intended that the deposit should belong to the donee, and received and held the book for her until acceptance by her, it shows a completed gift, even though it might have been revoked before acceptance.
Upon the question of the intention of Mrs. Ford in making the deposits, the. letter of the bank to her, and her declarations relating to it, are competent. The length of time between the declarations and the deposits affects the weight, but not the competency, of the evidence.
Upon the question of Mrs. Ford’s intention in holding the book before the gift was perfected, — whether she held it as owner, or as the agent or depositary for the plaintiff, — her declarations and acts while holding it, showing the character of the act, are competent. The acts of taking the orders from the plaintiffs for payment to herself were acts the significance of which depended upon her intent in them, — whether exercising dominion over the deposit as owner, or recognizing the dominion of the plaintiff; and her declarations and letters respecting such acts,
If the donor made the deposit and kept the book for the plaintiff, intending it as a gift to her, the gift would not be perfected until accepted by the donee; and acceptance implies a mutual act of the parties, or an act by one assented to by the other, equivalent to an acceptance of a chattel upon delivery. An act would perfect the gift of the legal interest which, had the deposit been in the donor’s name in trust, would have been sufficient to perfect the gift of the equitable interest, as in Gerrish v. New Bedford Institution for Savings, 128 Mass. 159" court="Mass." date_filed="1880-01-10" href="https://app.midpage.ai/document/gerrish-v-new-bedford-institution-for-savings-6419817?utm_source=webapp" opinion_id="6419817">128 Mass. 159. An acceptance and a completed gift might be inferred from the fact that the donor informed the donee of the gift, with the express or implied assent of the donee. Any act or speech between the parties, which should show a mutual understanding that the gift was made, would be sufficient evidence. The instructions to the jury were substantially correct, though not verbally accurate; but there was error in the exclusion of evidence.
Exceptions sustained.