(Mrs. Kauffman) was gone. * She wasn't versed much in banking accounts, and she wished us to make sure that her daughter received the funds. ** * She wanted it put in that way, so she could make sure her daughter would get it when she died." It is perfectly obvious that the account was not opened in this way for the convenience of Mrs. Kauffman (as frequently appears in suits of this kind), for Mrs. Kauffman was in good health and active practically all the time until her death in 1915, and on the other hand, when the account was opened, and for some years thereafter, Mrs. Edwards spent the daytime at employment in Philadelphia. Later, when she secured employment near at home, either one would go to the bank, as happened to suit their mutual convenience. Both took money to the bank to deposit, and the moneys so taken by Mrs. Edwards might be her mother's, or her own, or partly both, and vice versa. The production of the passbook for withdrawals was not requisite, and indeed the intrinsic evidence of the entries of withdrawal shows that it was by no means always presented at withdrawals; but, even if it had been required, it was kept at the home, accessible to both or either, and for a time in a safe deposit box accessible to either. No account or record was kept by either of the two as to the respective moneys of each which went into the account,-nor of withdrawals. Aside from the first deposit, the moneys contributed to the account by Mrs. Edwards (exclusive of interest) aggregated, as nearly as she could fix or estimate it, the sum of $2,600. Mrs. Kauffman then (not taking into account a deposit of $2,000 in her hands as administratrix of her husband, inadvertently put into this account and then withdrawn) must have deposited about $2,700. She withdrew about $2,200, leaving only $500 of her deposits at the time of her death. There were only ten withdrawals from the account, eight by checks signed by Mrs. Kauffman, and two by checks signed by Mrs. Edwards at Mrs. Kauffman's request, but all for the use, benefit, or account of Mrs. Kauffman. An examination of the entries and balances in the passbook, in the light of the testimony, shows that apparently at no time did the withdrawals by or for Mrs. Kauffman encroach upon the moneys which had been contributed by Mrs. Edwards, although this may perfectly well be mere accident and not design, since the withdrawals are so few, and since no record was kept of their respective contributions. Some $1,400 or $1,500 of the withdrawals were given by Mrs. Kauffman to her other children. Mrs. Edwards made no withdrawals for her own use or benefit. No occasion ever arose to require such a withdrawal. She said (on being pressed by me) that she felt she had a right to draw for her own use, if she had wanted it; yet again she said, "I felt it wasn't mine until after she was gone, anyway." The nature and extent of her right and interest in the deposit account as between herself and her mother was obviously very vague and indefinite in her mind; nothing like an expression thereof was ever had between them. The only other evidence of any particular significance is that when Mrs. Kauffman was seriously ill, and both feared she would not recover, she suggested to Mrs. Edwards that the "joint account" should be divided (apparently upon her death) between Mrs. Edwards, Mrs. Veider, John Kauffman, and William Kauffman-to which Mrs. Edwards said, “All right." The next day Mrs. Kauffman was somewhat better and Mrs. Edwards said to her mother, "Did you want me to take mine out?" meaning to take from the account, before the suggested distribution, the amounts which Mrs. Edwards had contributed thereto of her own moneys, to which Mrs. Kauffman Mrs. Edwards, being asked why she agreed to such a propsition, testified: "A. I assented to anything my mother wanted. assented. "Q. Even to the extent of giving your savings to your brothers and sisters? A. If my mother asked it." Considering this incident in relation to the trust claimed by the brothers and sister (and there is no other evidence to support such claim), I think it is clear that no such trust As to the contributions of Mrs. Edarose. wards to the account, there was no consideration; as to the contributions of Mrs. Kauffman there was no completed trust as in Hoboken Bank v. Schwoon, 62 N. J. Eq. 503, 50 Atl. 490. Such claim of trust is therefore disposed of adversely to the claimants. I have no difficulty in determining that the intent of Mrs. Kauffman was not merely to accomplish a "power of attorney"; it was clearly an intent that Mrs. Edwards should be vested, at some time, with the beneficial interest in at least the unsatisfied balance of the chose in action which should remain at Mrs. Kauffman's death, conditioned upon Mrs. Edwards then surviving. The evidence, as has been seen, disproves the idea that the account was opened in the dual form for any reason of convenience to Mrs. Kauffman, and the testimony as to Mrs. Kauffman's statements clearly proves her desire that Mrs. Edwards should have the "funds" at her death. This determination, however, does not, I take it, carry us quite far enough to be dispositive of the suit. I do not understand the Court of Errors to have overruled its decision in Stevenson v. Earl, 65 N. J. Eq. 721, 55 Atl. 1091, 193 Am. St. Rep. 790, 1 Ann. Cas. 49, by the opinion in N. J. Title Guaranty & Trust Co. v. Archibald, supra. On the contrary, the opinion of that court in Morristown Trust Co. v. Safford, supra, was handed down on the same day as the opinion in the Archibald Case, and affirms the decree in this (113 A.) uted. Such conduct, it seems to me, negatives the idea of the retention of separate interests and is compatible only with the idea and intent of a joint ownership in the mingled and indistinguishable assets, especially under the circumstances of close relationship and mutual trust existing between this mother and daughter. The incident at the time of the mother's presumed mortal illness in no wise effectually militates against the conclusion, for the testimony shows only that it was a suggestion or request that the mother made as to the other children sharing; it does not go to the extent of evidencing a belief by the mother that she had the right to alter the disposition of the "fund." court expressly for the reasons stated in Vices parties, and the keeping of no record by eiChancellor Stevens' opinion, and the latter ther as to the amounts respectively contrib opinion expressly rests the decision there reached upon Stevenson v. Earl. In Stevenson v. Earl it is held that a deposit agreement between Earl and the depositary, by the terms of which the balance remaining to the credit of Earl at his death should be paid to his wife, was invalid to pass the ownership in such balance to the wife, as being a testamentary disposition, and not conforming to the requisites of the statute of wills. Obviously, if what is done by a donor is a presently effective transfer of an interest, even if that interest be a remainder at donor's death, and conditioned upon donee's survival, there is no violation of the statute of wills, for the disposition is a present disposition and not a testamentary one. The interest vests presently in the donee though the enjoyment be only conditional and in futuro at the death of donor. This is not denied in the Earl Case; the opinion states that the disposition, which is invalid as being a testamentary disposition, is one where the agreement between donor and depositary is that the donor has complete right of ownership and control during his life, that so much as shall remain at his death shall be delivered to donee, "who shall then become the owner thereof." 65 N. J. Eq. 725, 55 Atl. 1093, 103 Am. St. Rep. 790, 1 Ann. Cas. 49. [2] Further inquiry, therefore, is necessary to determine whether Mrs. Kauffman's intent in this transaction was to make a present transfer vesting in Edwards an interest, even if enjoyment should be postponed till Mrs. Kauffman's death, or whether the intent was that at Mrs. Kauffman's death, and not until then, the intended beneficial ownership should pass to Mrs. Edwards. It is not necessary to decide whether Mrs. Kauffman intended that Mrs. Edwards should acquire more than a remainder interest coming into enjoyment at Mrs. Kauffman's death; but, assuming that this was the extent of the "gift," it is very difficult indeed to determine whether that interest was presently transferred, or intended to be transferred only at death. That difficulty of necessity must almost invariably exist in cases of this kind. Doubtless it would be very helpful if a definite rule or principle one way or the other should be established by legislative enactment, so that parties might be definitely sure in advance as to how their intent in transactions of this kind would be interpreted, and could be sure whether or not an attempt to make a gift in this way would be held valid or invalid. [3, 4] In the present case, I am inclined to the opinion that the intent was of a present transfer and vesting of the right in remainder (and probably, indeed, of a right in the entire chose during Mrs. Kauffman's life), from the fact of the indiscriminate mingling in the deposits of the contributions of both It might be argued that the indistinguishable mingling of the funds is explainable by the fact that the later account was simply a continuation, under the new names, of the earlier account, which had been in Mrs. Kauffman's name alone. But such an argument rather substantiates than disproves my conclusion, for the funds in the earlier account were contributed by both and mingled, and the change to the two names would rather evidence the intent by the mother that the daughter's actual interest in the account should be made a matter of record. As Mr. Phillips testified, "she wasn't much versed in banking accounts and she wished us to make sure that her daughter received the funds" (when she died). She, of course, had no solicitude except about what should occur after her death. She knew that while she lived there could no question or difficulty arise between herself and her daughter, for it is clear from the evidence that what was hers was her daughter's, and what was her daughter's was hers. [5] However, even if the scales balanced evenly upon the question of whether the intent was of present or future transfer, the result must be the same, for the complainant administrator not only assumed, but had, the burden of proof on the issue raised. To prove his assertion that the chose was the property of Mrs. Kauffman at her death (upon which proposition his right to recover rests solely), he must prove either (1) that the intent was not of gift at all, but of convenience (and as to this the proofs are all against him); or (2) that the intent, if of gift, was of future gift, and not present gift. I will advise a decree adjudicating the right of Mrs. Edwards to the entire account, and dismissing both bills. Mrs. Edwards is entitled to costs as against both complainants; I think no other costs should be awarded. It was stated to me toward the close of the hearing that a settlement had been arrived at between Mrs. Edwards and her brothers and sister. Upon my inquiring as to the terms of such settlement, however, it was apparent that the respective counsel were not in ac cord in regard thereto. In view of this, and, deem the security for payment of the note inasmuch as I have not otherwise been apprised thereof, and the same has not been made to appear of record, I am compelled to disregard the intimation of such settlement. DAVID STRAUS CO. v. COMMERCIAL (Court of Chancery of New Jersey. June 4, Chattel mortgages 5, 196-Assignment of lease or sale contract a chattel mortgage if purpose is to secure indebtedness, and must be recorded. An assignment of a lease or sale contract of motortrucks was in legal effect a chattel mortgage, and void as against a receiver and creditors of the assignor unless recorded, where it was intended to secure an indebtedness; the assignor having retained title in the trucks in its contract of lease or sale. Suit by the David Straus Company against the Commercial Delivery Company, in which defendant's receiver filed a cross-petition to the petition of the Morris Plan Company of New York and others claiming assets held by the receiver. Order advised (affirmed 112 Atl. 417). Theodore J. Harrington, of Elizabeth, and Harold H. Kissam, of New York City, for drivers and Morris Plan Co. insufficient or unsafe, the lessee agrees to deliver the car to the lessor in as good condition as received by the lessee. It is provided that, if the lessor takes possession of the car by reason of any default, the lessee agrees that all payments made should be retained as liquidated damages and for rental value. It is provided upon the lessor taking possession of the car it may be sold at public or private sale at any time without notice to the lessee, and if upon such sale the proceeds thereof are insufficient to pay the sum remaining unpaid with respect to the note and the expenses, the deficiency shall be paid by the lessee. It is provided that the lessor agrees that at the termination of the lease the lessee, if he has complied with all the terms and has paid in full the note. may become the purchaser of the car, in which event the payments made in accordance with the terms of the lease, together with the payment of the note by the lessee, will be accepted as and for payment of the purchase price of the car. Upon the back of each one of these so-called leases there is a written assignment made by the Commercial Delivery Company selling and assigning to "the Morris Plan Company all right, title, and interest in and to the foregoing agreement of lease, dated,” etc., “between," etc., "and in and to the property and rights therein described." The assignment further provided that "The undersigned further agrees, in the event Furst & Furst, of Newark (George Furst, of any resale, release, or repossession of said of Newark, of counsel), for receiver. LANE, V. C. The controversy is with respect to certain automobile trucks. The le property, to pay to said the Morris Plan Company of New York, or its assigns, any deficiency between the net proceeds of such resale and the amount necessary to pay the amount of the installments remaining unpaid and the reasonable expense of such resale and attorney's fees connected therewith." Preceding the lease, application for lease and purchase was signed by each driver reciting substantially the terms of the lease. Coincident with the making of the lease a service contract was entered into, under the terms of which the Commercial Delivery Company contracted with the driver that he would work the motortruck for a term of 2 years under the direction of the Commer gal title to the trucks was originally in the Commercial Delivery Company. That company entered into agreements called "leases" with individual truck drivers. The lessor referred to in the agreements is the Commercial Delivery Company, and the lessees the truck drivers. I will take one of the agreements as a sample. It recites that the Commercial Delivery Company, lessor, has delivered a certain truck to the lessee at a certain valuation, for the use of which truck, during the period of the lease, the lessee is to pay a certain sum of money and has giv-cial Delivery Company, on an average of en a promissory note, payable to the order of the Morris Plan Company and maturing 12 months from date. The period of the lease is stated to be until date of maturity of the note. It is provided upon default of any of the terms of the note the entire principal sum should become due at the option of the legal holder. The lessee is forbidden to sell, let, assign, incumber, use for hire, or dispose of the car without written consent of the lessor. Upon default in payment, or breach of condition, or if the lessor should at least 10 hours per working day, in such a manner as that the gross earnings of the truck will amount to at least the fixed monthly charges arising from the operating of said truck; that he would not permit the truck to be used in any other manner than as directed by the Commercial Delivery Company; that the entire gross monthly earnings of the truck was to be delivered to the Commercial Delivery Company, out of which it was authorized to retain 20 per cent. for its services, and out of the remain (113 A.) ing 80 per cent. authorized to pay drivers wages at the rate of $5 per day of 10 hours, monthly bills for oil, gasoline, repairs, etc., and storage charges of $15 per month, and any balance to be credited to the driver; that the truck should at all times be stored in a garage to be furnished by the Commercial Delivery Company; that the Commercial Delivery Company would, in addition to the other services to be performed by it, furnish at least a sufficient amount of work for the truck to meet all its fixed charges arising from the operation of said truck. At the time the contracts of leases were entered into payments were made by the drivers to the Commercial Delivery Company of the amounts stipulated to be paid in cash and partly in notes to the Commercial Delivery Company. The difference between the amount of cash and notes paid or made directly by the drivers to the Commercial Delivery Company and the purchase price of the car was made up by moneys received by the Commercial Delivery Company from the Morris Plan Company, for which moneys the Morris Plan Company took a note made jointly by the driver and the Commercial Delivery Company and the assignment of the so-called lease hereinbefore referred to. When the receiver of the Commercial Delivery Company went into possession of its assets, he found these trucks. Default had been made in the payment by the drivers of the monthly installments provided for by the contract of lease, which monthly installments went to the Morris Plan Company; it having advanced the money to the Commercial Delivery Company. The present application is on behalf of the truck drivers and the Morris Plan Company to compel the receiver to release possession of the cars either to the truck drivers or the Morris Plan Company. The proof is that the Commercial Delivery Company did not furnish sufficient work to the drivers to meet the fixed charges. The receiver insists that he has the right to possession of the trucks and to dispose of them because of garage liens and also because the legal title remains in the Commercial Delivery Company. The only creditors whose rights are to be considered are the creditors of the Commercial Delivery Company. The intent of the contract between the Commercial Delivery Company and the truck driver was to retain title in the Commercial Delivery Company. Whether the intent of the assignment from the Commercial Delivery Company to Morris Plan Company was to transfer the legal title to Morris Plan Company may be a subject of controversy. The instrument assigns all right, title, and interest in and to the agreement of lease, and this, of course, would carry with it the right to receive payments from the lessee, the truck driver. It then proceeds "and in and to the property and rights therein described." It may be that from this language there may be spelled out an intent to transfer the legal title to the truck. The Commercial Delivery Company then agrees in case of a resale, etc., to pay any deficiency between the net proceeds of the resale and the amount necessary to pay the amount of the installments remaining unpaid and the reasonable expense of such resale and attorney's fees connected therewith. There is nothing said with respect to what happens to any surplus. Assuming that the intent was to transfer the legal title to the Morris Plan Company, the question arises as to whether that transfer of the legal title is valid as against creditors of the Commercial Delivery Company, and that depends upon whether it was an absolute transfer of the legal title or transfer as security. In determining this question, it must be kept in mind that the Commercial Delivery Company was a joint maker upon the note of the truck driver. It was a debtor of the Morris Plan Company. In the instrument of assignment it guaranteed the payment of the note and made itself responsible in case of a resale for any deficiency. It was contemplated by the instrument of assignment that the rights of the parties should be settled by a resale. While the instrument is not in form a chattel mortgage, it is in substance. It is defective as a pledge. There was no delivery of the trucks. The physical possession of the trucks has always been in the Commercial Delivery Company. While the right of possession apparently went to the drivers, yet, by virtue of the service contract executed simultaneously with the lease, the actual possession went to the drivers only during the day time when in use by them, practically as drivers for the Commercial Delivery Company. Assuming that the possession went to the drivers, it seems to me that, so far as the Morris Plan Company is concerned, the possession of the drivers must be considered the possession of the Commercial Delivery Company. The real purpose of the transfer of the interests under this lease and of the property, if such was intended to be its ef fect, was to secure payment of the debt due to the Morris Plan Company from the Commercial Delivery Company and the truck drivers. There was no change of possession of the title, so that it seems to me that, the transaction being in the nature of a chattel mortgage, it is void as against creditors of the Commercial Delivery Company. The result is that as against the receiver represent ing creditors the Morris Plan Company is not entitled to the possession of these cars. Nor are the truck drivers. has been made that because of the breach on the part of the Commercial Delivery Company of its contract to furnish sufficient No argument work for the cars to meet fixed charges the truck drivers are entitled to take the cars without payment of the purchase price. The Commercial Delivery Company being insolvent, in the hands of a receiver, there can be no specific performance. The relative rights of the driver and the Commercial Delivery Company can only be worked out by a sale of the cars. It may be that out of the proceeds of such sale the drivers will be entitled to such damages as they may show accrued to them by reason of the failure of the Commercial Delivery Company to fulfill its contract. In this connection it must also be kept in mind that most, if not all, of the truck drivers are in default upon their personal notes to the Commercial Delivery Company, and by no stretch of the imagination can it be contended that the Commercial Delivery Company agreed that sufficient work should be given to the trucks to meet these, and, indeed, it may be claimed that under clause 6 of the service contract it was not contemplated that the installments due upon the notes of the Morris Plan Company should be considered as included within the term "all fixed charges arising from the operation of said truck." In any event, it seems to me that the drivers are not entitled to the immediate possession of the trucks, and that the trucks must be sold. An order, therefore, will be advised adjudging that the receiver is entitled to the possession of these trucks and is entitled to sell them free, clear, and discharged of any lien, or claim of title, of the Morris Plan Company, or of the truck drivers, and further that the instrument securing the Morris Plan Company upon its notes is void as against the creditors of the Commercial Delivery Company. What the rights of the truck drivers may be, if any, in the proceeds of sale, I do not determine. It may be claimed that, if they have suffered any loss or damage by breach of contract, they are but general creditors. If after the sale of the trucks, or before, counsel desire to reargue the question as to whether the Morris Plan Company is entitled to a prior lien upon the proceeds of sale, they may do so upon notice. LEBER et al. v. ROSS et al. (No. 49/468.) (Court of Chancery of New Jersey. April 19, 1921.) . Interpleader 10-Attorneys held trustees not bailees of vendor of land. Attorneys who represented both parties to a contract for the sale of land and who retained a portion of the purchase price until the vendor complied with her agreement to give possession and to pay all charges against the FOSTER, V. C. This is a motion to dismiss complainants' bill of interpleader on the ground that the averments of the bill do not show complainants entitled to the relief. The situation disclosed by the bill is that complainants are lawyers practicing as partners in the city of Newark, and as such, in the month of January, 1921, they acted as attorneys for the defendant Rosie Ross, then trading as the Ross Theater Company, and also for the Charlton Realty Company, in connection with the assignment or surrender of a lease on the Metropolitan Theater in Newark. About January 17, 1921, the transaction was closed, and Mrs. Ross received the entire purchase price, except $450, which was left with complainants for the purposes set forth in an acknowledgment reading as follows: "Newark, N. J., January 17, 1921. "We hereby acknowledge the receipt from Rosie Ross of the sum of four hundred fifty ($450) dollars which we are to hold as security that said Rosie Ross will vacate said Metropolitan Theater, Newark, N. J., on February 3, 1921, at noon, and will pay all claims in connection with the operation of said theater incurred by her, such as electric bills, etc. Upon said vacation and payment the said sum of four hundred and fifty ($450) dollars shall be at once returned; otherwise to be forfeited to the Charlton Realty Company. "Leber & Ruback, by Meyer E. Ruback." On February 2, 1921, Nathan Salzman and Hyman Harris recovered judgment in a Newark district court against Samuel Ross, husband of Rosie Ross, for $500. Execution was issued thereon, and on or about February 3d a levy was duly made upon the fund of $450 in the hands of complainants, on the ground that the fund is the property |