If A place money for B in a bank, taking a deposit-book for it in his name, and subsequently notifies him of the credit and that he intended it as a gift, which B accepts, does this vest the title in him, and divest A of all title and possession of it, if he retains the deposit-book? In Blasdel v. Locke, 52 N.H. 238, a bill in equity by the administrator of the donor against the bank and the donee to recover a deposit, on similar facts, though less favorable to the defendants, it was held "that the deposit created a trust in the bank in favor of B, and that upon information of what had been done being conveyed by A to B, and acceptance by B, her title to the money became absolute, although there was no delivery of the deposit-book." The failure to deliver the deposit-book did not make the transaction an executory instead of an executed trust and perfected gift.
In the case at bar, the father of the defendant Huldah deposited in the bank in her name, before her marriage, the money in controversy. He made no declaration to the bank other than to direct the deposit in his daughter's name and receive the deposit-book. He intended, however, the deposit as a gift to her, subject to his taking the income while he lived, and to his wife's taking it for her life if she survived him. He afterwards showed the deposit-book to his daughter, she saw the entry, and he informed her of the gift and she accepted it, he retaining the book during his life to enable him to draw the income. We understand the case to find that the father intended, at the time of making the deposit, to make a present gift to his daughter, subject to the taking of the income, unless the evidence of the imperfectly executed will was in law conclusive. The will was not conclusive evidence, even if
competent, on the question, and the case stands on the finding of the court on all the evidence, including the will. The administratrix of James Smith, the father, claims that the transaction was in the nature of a testamentary disposition of the property, not in accordance with the statute of wills. Bartlett v. Remington, 59 N.H. 365. There is, however, a marked distinction between this case and that of Bartlett v. Remington. In that case the deposit was made in the name of the person making it, for Sarah Sturoc, on the trust that the depositor was to hold the title and the power to dispose of the property so long as she lived, and then what was left was to go to Sarah. This was held to be an executory trust, not an executed one. In this case the money was deposited in the name of a third party, the depositor intending to make a present gift of it, subject to the taking of the income. To establish a valid gift, a delivery of the subject-matter to the donee or to some person for him, so as to divest the title and possession of the donor, must be shown; and the inquiry is, whether a valid gift in presenti can be made of money, subject to the right of the donor to take the income. Such a gift, we think, may be made by a proper transfer to a trustee; and the question is, whether the facts of this case present such a transfer. If A deposits money in B's name, without his knowledge, intending it as a gift, it is not perfected, as the assent of both parties is necessary. Peirce v. Burroughs, 58 N.H. 302. But when B is notified of the gift and accepts it, his legal title to the money is perfected, and if not paid on demand he may maintain his action at law to recover it. A could have no action for the money, either at law or in equity, as all title and right of possession have passed from him. Again: If A deposits money in B's name to his credit, intending it as a present gift, but to remain in the bank during the lives of A and his wife and that of the survivor, subject to the income being taken by them, the bank takes the money on the trust to hold it for the term, pay the income to A and wife, or the survivor, during the term, and at the close pay the principal sum to B, and when B is notified of the gift and accepts it with its burdens and conditions, a title to the principal is perfected in him, subject to the equitable right of A and wife to take the income. A's title and possession and all right to a title or the possession of the principal is as entirely divested at the moment of the acceptance as if it were to be paid by the bank to B on demand. It is an executed, perfected gift as to A. He has delivered the money to the bank: his dominion and power to revoke are gone. His situation is not dissimilar to what it would have been had he given the money accompanied by an unqualified delivery to B, vesting the title and possession in him on B's undertaking to account to A for the income he might receive from it during the term, — the important difference being that the payment of the income to Smith and wife is secured and made through a trustee — practically, at least, the safer way.
Just what it is necessary to do to pass the title to money though the intervention of a savings-bank the authorities do not agree in the different states, and often in the same state, and it would be a difficult task to reconcile them. The doctrine of Blasdel v. Locke supra, is not supported in all of its positions by all of the authorities, but we see no good reasons for departing from it, and think it supports the conclusions to which we have arrived. The following authorities discuss the questions involved in this case: Scott v. Bank, 140 Mass. 157, 165; Davis v. Ney,125 Mass. 590; Gerrish v. Institution, 128 Mass. 159; Turner v. Estabrook,129 Mass. 425; Ide v. Pierce, 134 Mass. 260; Eastman v. Bank, 136 Mass. 208; Sherman v. Bank, 138 Mass. 581; Nutt v. Morse, 142 Mass. 1; Curtis v. Bank,77 Me. 151 — S.C., 52 Am. Rep. 750; Marston v. Marston, 64 N.H. 146; Robinson v. Ring, 72 Me. 140 — S.C., 39 Am. Rep. 308; Martin v. Funk,75 N. Y. 134; Young v. Young, 80 N.Y. 422; Willis v. Smyth, 91 N.Y. 297; Mabie v. Bailey, 95 N.Y. 206; Burton v. Bank, 52 Conn. 398 — S.C., 52 Am.Rep. 602, Minor v. Rogers, 40 Conn. 512; Camp's Appeal, 36 Conn. 88; Millspaugh v. Putnam, 16; Abb. Pr. 380; Gardner v. Merritt, 32 Md. 78 — S.C., 3 Am. Rep. 115; Ray v. Simmons, 11 R. I. 266 — S.C., 23 Am. Rep. 447; Taylor v. Henry, 48 Md. 550 — S.C., 30 Am. Rep. 486. 489; Howard v. Bank,40 Vt. 597; Pope v. Bank, 56 Vt. 284; Marcy v. Amazeen, 61 N.H. 131.
Decree, that the plaintiff in the bill of interpleader pay the income of the deposit to Mrs. Smith during her life, and at her death the principal to Huldah F. Emerson. In the suit at law, judgment for the defendant. The costs will be adjusted at the trial term.
ALLEN, J., did not sit: the others concurred.