a tentative trust, revocable at will until the depositor dies or completes the gift by some unequivocal act, such as delivery of the book or notice to the beneficiary. 120. DEPOSIT IN NAME OF ANOTHER—Where one person, with the intention of making a gift, deposits his own money in the name of another, who assents, the transaction operates as a gift of the deposit. 121. DELIVERY OF PASS BOOK-When a depositor, with the intention of making a gift, delivers his pass book to another, who assents, the transaction vests in him the equitable title to the deposit. 122. JOINT DEPOSIT-Where one person, with the intention of creating a joint ownership, deposits his own money as a joint deposit in the name of himself and another, the transaction operates accordingly as a gift; but some courts hold that delivery of the pass book to the other is essential. Deposit in Trust A trust in personal property may be created by the simple declaration of the owner that he holds the property in trust, with or without power of revocation. Thus, a trust of a deposit may be created when one person makes a deposit of his own money in a savings bank "as trustee" for another person. An intention to create a trust is requisite, and such an intention is not necessarily to be inferred, because of the common practice of persons who have deposits in their own name in the full amount allowed to one person to open ac 47 Brabrook v. Boston Five Cents Sav. Bank, 104 Mass. 228, 6 Am. Rep. 222. See "Banks and Banking,” Dec. Dig. (Key No.) § 301; Cent. Dig. § 1170; "Trusts," Dec. Dig. (Key No.) § 34; Cent. Dig. § 44. 49 counts in this form for their own benefit.48 And the courts generally agree that to establish a trust something more is necessary than the mere opening of an account in the name of the depositor in trust for another. Some cases go so far as to hold that such a deposit, not communicated to and accepted by the beneficiary, is insufficient to perfect a trust.50 If there is an express declaration of trust, accepted by the beneficiary, it is not defeated by the fact that the trustee retains the book and thereby retains control. In New York 48 See Brabrook v. Boston Five Cents Sav. Bank, 104 Mass. 228, 6 Am. Rep. 222; Parkman v. Suffolk Sav. Bank for Seamen, 151 Mass. 218, 24 N. E. 43. See "Banks and Banking," Dec. Dig. (Key No.) § 301; Cent. Dig. § 1170; "Trusts," Dec. Dig. (Key No.) § 34; Cent. Dig. § 44. 49 Parkman v. Suffolk Sav. Bank for Seamen, 151 Mass. 218, 24 N. E. 43; Nicklas v. Parker, 69 N. J. Eq. 743, 61 Atl. 267. See "Trusts," Dec. Dig. (Key No.) § 34; Cent. Dig. § 44. 50 Clark v. Clark, 108 Mass. 522; Sherman v. New Bedford Five Cents Sav. Bank, 138 Mass. 581; Alger v. North End Sav. Bank, 146 Mass. 418, 15 N. E. 916, 4 Am. St. Rep. 331; Supple v. Suffolk Sav. Bank for Seamen, 198 Mass. 393, 84 N. E. 432, 126 Am. St. Rep. 451. A deceased person deposited money, in his own name, as trustee of certain persons individually, telling them that he had done so. The bank books were in the hands of one of them, but he held the books merely as the servant or agent of the deceased, and the latter retained the entire dominion and control of the funds, both principal and interest, during his life, and he did not intend that the title to or interest in the funds should pass from him until after his death. Held, that the transaction, being in the nature of a testamentary disposition, was an attempted evasion of the statute of wills, and that the funds so deposited remained the property of the depositor at the time of his death, and belonged to the administrator, to be divided according to the statute of distribution. Nutt v. Morse, 142 Mass. 1, 6 N. E. 763. See "Banks and Banking," Dec. Dig. (Key No.) § 301; Cent. Dig. § 1170; "Trusts," Dec. Dig. (Key No.) § 84; Cent. Dig. § 44. 51 Miller v. Clark (C. C.) 40 Fed. 15. See, also, Appeal of Buckingham, 60 Conn. 143, 22 Atl. 509; Scott v. Berkshire Co. Sav. Bank, 140 Mass. 157, 2 N. E. 925. See "Trusts," Dec. Dig. (Key No.) § 84; Cent. Dig. § 44. 52 it was formerly held that where one person makes a deposit as trustee for another it was to be presumed, in the absence of evidence to the contrary, that a trust was intended; but this doctrine has been limited, and it is now held that such a deposit, standing alone, does not establish an irrevocable trust during the lifetime of the depositor, but a tentative trust merely, revocable at will, until the depositor dies or completes the gift in his lifetime by some unequivocal act or declaration, such as delivery of the book or notice to the beneficiary, but that if the depositor dies before the beneficiary, without revocation or disaffirmance, the presumption arises that an absolute trust was created as to the balance on hand at the depositor's death.53 The New York doctrine of a tentative trust, in such cases-that is, a trust originally revocable and only perfected by the death of the beneficiary-while its justice has been approved, has been adversely criticised as inconsistent with the law of trusts." 54 Deposit in Name of Another Similarly, it it held that a deposit in the name of another is not alone sufficient to prove a gift.55 The gift may be per 52 See Martin v. Funk, 75 N. Y. 134, 31 Am. Rep. 446; Willis v. Smyth, 91 N. Y. 297. See "Trusts," Dec. Dig. (Key No.) § 34; Cent. Dig. § 44. 53 In re Totter, 179 viewing prior cases). 393, 95 N. Y. Supp. 97. Dig. § 44. N. Y. 112, 71 N. E. 748, 70 L. R. A. 711 (re- 54 Nicklas v. Parker, 69 N. J. Eq. 743, 61 Atl. 267. See 19 Harv. Law Rev. 207. See "Trusts," Dec. Dig. (Key No.) § 84; Cent. Dig. 844. 55 Booth v. Bristol County Sav. Bank, 161 Mass. 455, 38 N. E. 1120; Marcy v. Amazeen, 61 N. H. 131, 60 Am. Rep. 320; Beaver v. Beaver, 117 N. Y. 421, 22 N. E. 940, 6 L. R. A. 403, 15 Am. St. Rep. 531; Id., 137 N. Y. 59, 32 N. E. 998. See, also, Robinson v. Ring, 72 Me. 140, 39 Am. Rep. 308; Northrop v. Hale, 73 Me. 66; Pope v. Burlington Sav. Bank, 56 Vt. 284, 48 Am. Rep. 781. See "Gifts," Dec. Dig. (Key No.) §§ 30, 66; Cent. Dig. §§ 52-57, 65, 135–138. 56 fected by communication to and assent of the donee," even though the depositor retains the pass book," but not if it appears that an absolute gift was not intended.58 Delivery of Pass Book by Way of Gift Delivery to a donee of the pass book, containing entries of deposits to the credit of the depositor, with the intention to give to the donee the deposits, if he assents, vests in the donee the equitable title to the deposits.5 Evidence of an intention to give is requisite. The gift, if made in this way, must be completed by delivery from the donor to the donee or to 60 56 Wickford Sav. Bank v. Corey, 25 R. I. 217, 55 Atl. 684. See, also, Wilson v. Edwards, 79 Ark. 69, 94 S. W. 927; Eversole v. First Nat. Bank of London (Ky.) 51 S. W. 169. Cf. Goelz v. People's Sav. Bank, 31 Ind. App. 67, 67 N. E. 232. Where a deposit is made without the knowledge of the alleged donee, and the deposit book is retained by the donor, if the evidence shows that the donor intended that the deposit should belong to the donee, and received and held the book for him until acceptance by him, it shows a completed gift, even though it might have been revoked before acceptance. Scott v. Berkshire Co. Sav. Bank. 140 Mass. 157, 2 N. E. 925. See "Gifts," Dec. Dig. (Key No.) §§ 30, 66; Cent. Dig. §§ 52-57, 65, 135–138. 57 Smith v. Ossipee Val. Ten Cents Sav. Bank, 64 N. H. 228, 9 Atl. 792, 10 Am. St. Rep. 400. See "Gifts," Dec. Dig. (Key No.) §§ 30, 66; Cent. Dig. §§ 52-57, 65, 135–138. 58 Hollowell Sav. Inst. v. Titcomb, 96 Me. 62, 51 Atl. 249. See “Gifts," Dec. Dig. (Key No.) §§ 30, 66; Cent. Dig. §§ 52–57, 65, 135– 138. 59 Meriden Sav. Bank v. McCormack, 79 Conn. 260, 64 Atl. 338; Hill v. Stevenson, 63 Me. 364, 18 Am. Rep. 231; Kimball v. Leland, 110 Mass. 325; Sheedy v. Roach, 124 Mass. 472, 26 Am. Rep. 680; Ridden v. Thrall, 125 N. Y. 572, 26 N. E. 627, 11 L. R. A. 684, 21 Am. St. Rep. 758; Polley v. Hicks, 58 Ohio St. 218, 50 N. E. 809, 41 L. R. A. 858; Watson v. Watson, 69 Vt. 243, 39 Atl. 201. Otherwise of an ordinary bank book. Thomas' Adm'r v. Lewis, 89 Va. 1, 15 S. E. 389, 18 L. R. A. 170, 37 Am. St. Rep. 848. See "Gifts," Dec. Dig. (Key No.) §§ 30, 66; Cent. Dig. §§ 52-57, 65, 135–138. 60 Nogga v. Savings Bank of Ansonia, 79 Conn. 425, 65 Atl. 129; See Jones v. Crisp, 109 Md. 30, 71 Atl. 515. See "Gifts," Dec. Dig. (Key No.) §§ 30, 66; Cent. Dig. §§ 52-57, 65, 135–138. 62 some one for the donee. Delivery of the book with an order for a sum less than the deposit, with intent to make a gift, is sufficient to vest title in the donee of the amount of the order. It is possible, however, to make a valid gift of a deposit in the donor's name otherwise than by delivery of the book, as by an assignment assented to by the donee and the bank. Joint Deposit Where two persons own jointly a deposit, the survivor becomes vested with the ownership of the entire fund. When one person makes a deposit in a savings bank in the joint names of himself and another, if the depositor's donative purpose is established, it is usually held to create a joint ownership, and to be a valid gift inter vivos. This result does not follow, however, from the mere fact that a deposit is made in such form; for the depositor may always show that the money was his own and that such was not his intention. And as deposits are frequently made in this form when there is 61 Dougherty v. Moore, 71 Md. 248, 18 Atl. 35, 17 Am. St. Rep. 524; In re Bolin, 136 N. Y. 177, 32 N. E. 626. Delivery to an agent, who is not to deliver till the donee's death, is not sufficient. Augusta Sav. Bank v. Fogg, 82 Me. 538, 20 Atl. 92. If the book is in the hands of the donee, actual delivery is unneccessary. Providence Inst. for Savings v. Taft, 14 R. I. 502; Goodrich's Ex'r v. Rutland Sav. Bank, 81 Vt. 147, 69 Atl. 651, 17 L. R. A. (N. S.) 181. Cf. Schollmier v. Schoendelen, 78 Iowa, 426, 43 N. W. 282, 16 Am. St. Rep. 455. See "Gifts," Dec. Dig. (Key No.) §§ 30, 66; Cent. Dig. §§ 52-57, 65, 135-138. 62 Wetherow v. Lord, 41 App. Div. 413, 58 N. Y. Supp. 778. See “Gifts,” Dec. Dig. (Key No.) §§ 30, 66; Cent. Dig. §§ 52–57, 65, 135– 138. 63 Candee v. Connecticut Sav. Bank, 81 Conn. 372, 71 Atl. 551, 22 L. R. A. (N. S.) 568. See "Gifts," Dec. Dig. (Key No.) §§ 30, 66; Cent. Dig. §§ 52-57, 65, 135–138. 64 Whalen v. Milholland, 89 Md. 199, 43 Atl. 45, 44 L. R. A. 208; Kelly v. Beers, 194 N. Y. 49, 86 N. E. 980; Id., 194 N. Y. 60, 86 N. E. 985; Whitehead v. Smith, 19 R. I. 135, 32 Atl. 168. See "Gifts," Dec. Dig. (Key No.) §§ 30, 66; Cent. Dig. §§ 52-57, 65, 135–138. |