
    James Tillinghast, Administrator, v. James Wheaton, Executor.
    Tbe delivery of a savings bank pass-book containing tbe entries by tbe officers of tbe bank of tbe moneys deposited by a deceased wife, with a parol gift of tbe same by surviving husband when in extremis, is a valid donatio causa mortis of tbe money deposited in tbe bank.
    This was a bill brought by the administrator of Sarah Crock-er, setting forth that one of her sisters claimed certain money deposited in a savings bank as a donatio causa mortis to them. That the other next of kin, and the administrator of the bus-band, also claimed tbe money, and asking tbe instruction of tbe court. The facts are fully stated in the opinion of the court*
    The cause was argued by James TW'~-hast for sisters claiming the gift, and by John P. Knowles, ira. The only brief filed was by James Tillinghast, as follows i
    Upon the decease of Mrs. Crocker, intestate, this deposit vested in said John Crocker as her surviving husband.
    3. Under the English Statutes, the husband’s right to his deceased wife’s personal property has been settled from the earliest times; and it does not at all depend upon his taking administration. His taking administration at all is merely ancillary to his asserting his right to the property. If he can get in the property without administration, his title to it is as perfect and complete as though it were got in through administration. He may, even in equity, on proving his wife left no debts, sue for and recover her property without administration ; and if administration is committed to any other person, it is solely for the benefit of the husband and as his trustee. 1 Williams on Executors, 741, &c.; Humphreys, administrator, v. Bullen and wife, administratrix, 1 Atkins, 458 ; 2 Williams on Executors, 1276-7; Mliot v. Collier, 3 Atkins, 526, same case; 1 Wils, 168, 1 Ves. (Senior) 15 ; Watt v. Wait, 3 Vesey, Jr., 244: Molony v. Kennedy, 10 Simons, 254. And so in this country where similar statutes exist. Stewart v. Stewart, 7 Johns’ Chancery, 243 ; Whitaher v. Whitalcer, 6 Johns’ Rep. 119 ; Hudson v. Wallace, 1 Rich. Eq. (So. Car.) 1. See p. 23. .This was so before the English Statutes of Distributions, (22-23 Car. II, Chap. 10), and that statute did not change it. The husband is not mentioned in it, and is not within its equity. The explanatory section thrown into the Statute of Frauds (29 Car. II, Chap. 3, § 25) was merely from abundant caution. 1 Williams on Executors, 336, &c. ; 2 Williams on Executors, 1276, &c. ; per Lord Hardwick, in Humphrey v. Bullen and wife, 1 Atkins, 458 ; and in JElliot v. Collier, 1 Wils. 168, same case, 1 Vesey, 15 ; per Lord Loughborough, in Walt v. Walt, 3 Vesey, 247. • 2. Unless, therefore, some radical difference can be pointed out between our statutes and the statutes of England and these other States, the question involved in this case has long since been concluded by the highest judicial authority. Now, so far from there being any such radical difference in our statute, it is, substantially, indeed, almost literally, a reenactment of the English statutes. Our statute of distributions (Rev. Stat. Chap. 159, § 9. p. 373) is an almost literal transcript from the statute, (22 and 23, Car. II, Chap. 10,) and must be construed in connection with section 7 of chapter 156, (Rev. Stat. p. 361,) which is almost a verbatim reenactment of the explanatory section of the Statute of Frauds (29 Car. II, Chap. 3, § 25.) And that it was so intended is particularly apparent, from a comparison of this section 7, where it first appeared as section 13 in the act on page 297 of the Digest of 1798, and continued in the same connection and language down to and through the Digest of 1844, (preceded as it is by sections regulating the grant of administration upon, and the distribution of, intestate estates,) with that section of the Statute of Frauds as cited in 2 Williams on Executors, 1276. By simply changing the connection'and location of this section, and therefore omitting the concluding clause, — “anything in this act to the contrary notwithstanding,” — the Revisers of the Digest of 1857, or the General Assembly, could not have intended to radically change the law, as any such intention would have been plainly expressed. And compare section 13 of chapter 153, (Rev. Stat. p. 363.)
    3. But if this is not so, then the explanatory section of the English Statutes of Frauds is still in force in this State. It was expressly introduced by the act of 1750, included in the Digest of 1767, page 56, and has been expressly kept in force through all succeeding revisions to the present time. See Rev. Stat. Chap. 245, § 3, p. 632.
    4. Any other construction of the statute would make the husband’s rights dependent upon the mere accident of his surviving his wife sufficiently long, or being competent or able mentally or otherwise, to take or obtain administration, which never could have been intended.
    These respondents claim this deposit by gift from John Crocker.
    
      1. The bank deposit, or pass-book, represents tbe deposit itself; is the evidence of tbe indebtedness of tbe bank to tbe depositor, as much so as tbe bond or note of a corporation or individual. It is made so (if indeed it would not be so otherwise) by tbe express provision of tbe act of incorporation of tbe bank, which provides, in article 4th of section 5, as follows: “ An account shall be given in a book to each depositor, by tbe treasurer, of tbe sum deposited, which shall be the evidence of the depositor's property in said corporation."
    
    2. It is now fully settled, (whatever doubts may have been formerly entertained respecting it,) that not only negotiable notes, bonds, &c., of a third person, which are payable to bearer, or can pass by delivery, but also such as are “ not negotiable so as to pass by delivery, and also promissory notes not negotiable, bonds, mortgages, policies of insurance, and all other evidences of indebtedness which may be regarded as representing the debt, may be a parol gift, and tbe delivery of tbe paper by which the debt is evidenced, either with or without a written assignment or endorsement,” constitute a valid gift inter vivos, or mortis causa, tbe donee having tbe right to use tbe name of tbe executor or administrator of tbe donor to collect them. 2 Redfield, § 42, ¶ 5 (9), pp. 312-13, and ¶ 6, p. 317, ei passim; Duffield v. Elwes, 1 Bligb, N. S. 497, same case 1 Dow & Clark, 1; Parish v. Stone, 14, Pick. 198 (per Shaw, C. J. 204-5-6); Grover, administrater, v. Grover, 24 Pick. 261.
   The opinion of tbe court was read by

Dubfee, J.

The bill is brought to determine who is entitled to a sum of money on deposit in tbe Providence Institution for Savings in tbe name of Sarah Crocker,-who died August 5, 1865, leaving a husband who died August 20, 1865, without having taken out letters of administration on her estate. Tbe money is claimed by tbe brother and sisters of Sarah Crocker, as her next of kin; by James Wheaton, as executor of the last will of John Crocker, and also by Abby Ashton and Jane K. Carpenter, two of the sisters of Sarah Crocker, by virtue of an alleged gift mortis causa from Sarah Crocker, or from John Crocker after her decease, and agreeably to her request. The last named is the claim which has been mainly contested, it being virtually conceded, that as between the next of kin of Sarah Crocker, claiming as such, and the executor of John Crocker, the executor has the better right.

Sarah Crocker at her decease, held, as evidence of the amount due her from the bank, a book in which her account with the bank was stated by its officers ; and it is claimed that the gift was made by a delivery of this book, with words of gift, to Abby Ashton, by John Crocker, into whose hands the book had come, after his wife’s decease, accompanied by a lettet from her requesting him to divide it equally between Abby and Jane after he had done with it.

In proof of this allegation, William T. Luther was called as a witness and testified, that he was with John Crocker during his last illness and took care of him ; that said Crocker was sick a week or ten days after his wife’s decease ; that a day or two before he died he saw him give to Mrs. Ashton a book similar to the bank-book which was exhibited to the witness, (being the book formerly belonging to Mrs. Crocker,) and heard him tell her to take it, keep it, and take care of -it, it was hers. The witness could only say the book given was like the book exhibited to him, not that it was the same. In regard to the note alleged to have been written by Mrs. Crocker, the witness only knew there was a note found in her drawer after she died, and that it was given to Mr. Crocker ; the next morning he asked Mr. Crocker if he had read it; Crocker said he had, it was sacred, that anything Sally said, should be done, — meaning his wife. The witness also testified that Mr. Crocker had considerable gold and silver in the house which he wanted Mr. Wheaton to dispose of; that Wheaton took the gold and took a bank-book with him ; that Wheaton returned and again went away; and that it was two or three hours subsequently that Mr. Crocker gave the bank-book to Mrs. Ashton. Wheaton testified, as to the alleged letter to Mrs. Crocker which was shown him, that there was a letter from Mrs. Crocker of a similar import, but he thought not the same as the one shown him, though he was not sure; and as to the bank-book, that Mr. Crocker banded it to bim, and tbat at bis request be carried it to tbe bank to bave it- transferred to Mis. Asbton and Mrs. Carpenter; tbat tbe bank declined to make tbe transfer, and be probably returned tbe book to Mr. Crocker, tbe witness being old and bis recollection indistinct.

Sucb is tbe substance, of tbe testimony, and, being uncontradicted, we tbink it proves tbat tbe book delivered to Mrs. Asbton is tbe book wbicb belonged formerly to Mrs. Crocker, and tbat it was given by Mr. Crocker in contemplation of death, and for tbe purpose of transferring to tbe donee tbe money in bank of wbicb it is tbe evidence. Sucb being our conclusion, tbe question is, whether, under tbe law relating to gifts mortis causa, tbe gift by simple delivery of a bank-book, wbicb in itself is nothing more than tbe non-negotiable evidence or certificate of tbe deposit and its increment, can operate as a gift of the deposit and its increment.

It has been uniformly held, tbat bank notes, notes payable to beater, and other securities and evidence of indebtment, which are transferable by mere delivery, may pass as gifts mortis causa ¡ but in Miller v. Miller, 3 P. Wms. 356, it was decided tbat a note of band, not payable to bearer, and being a mere chose in action to be sued in tbe name of tbe executor, was not tbe subject of a donatio causa mortis. In Ward v. Turner, 2 Ves. Sen. 431, it was held by Lord Hardwicke, tbat a gift of receipts for South Sea Annuities was not a good donatio causa mortis, principally because tbe property did not pass by a de; livery of tbe receipts, but a transfer was necessary, wbicb was not made. Tbe doctrine of these decisions has been recognized and approved in other English and in some American cases. Tate v. Hilbert, 2 Ves. Jr., 110; Pennington v. Gittings, 2 Gill & J. 208 ; Bradley v. Hunt, 5 Gill & J. 54; Overton v. Sawyer, 7 Jones’ Law (N. C.) R. 6. But in tbe more recent English decisions, the strictness of tbe ancient rule has been much relaxed, and it is stated by Mr. Redfield, who seems to bave bad access to all tbe later cases, tbat it is now fully settled in tbe English courts, tbat not only are all -securities wbicb pass by 'delivery or by endorsement, when endorsed in blank, tbe subjects for a valid gift mortis causa, but that “ even promissory notes and bills not negotiated so as to pass by delivery, and also promissory notes not negotiable, bonds, mortgages, policies of insurance, and all other evidences of indebtedness which may be regarded as representing the debt, may, by a parol gift, and the delivery of the paper by which the debt is evidenced, either with or without written assignment or endorsement, constitute a good gift mortis causa." 2 Redfield on Wills, pp. 312, 313, and cases there cited. The rule thus educed from the English authorities has been repeatedly recognized and applied by the American courts. Brown v. Brown, 18 Conn. 410; Waring v. Edmonds, 11 Md. 424; Parish v. Stone, 14 Pick. 198 ; Turpin v. Thompson, 2 Met. (Ky.) R. 420; Lee v. Boak, 11 Gratt. (Va.) 182 ; Caldwell v. Renfraw, 33 Vt. 213 ; and see Westerlo v. De Witt. 35 Barb. 215. It is true we find no case which is the exact parallel of the case before us, but the principle declared in the cases to which we have referred is broad enough to include the case before us ; and therefore whatever, as a matter of wise policy, we may think of the expediency of holding a Savings Bank book to be the subject of a gift mortis causa, we do not see how, as a matter of law, we can hold otherwise. We think the gift a valid gift, and that the donor is entitled to have it perfected, if need be, by the legal representatives of Mr. or Mrs. Crocker.

The answer of Mrs. Ashton and Mrs. Carpenter sets up a claim to the deposit and its increment by virtue of a gift mortis causa to them jointly. The evidence shows a gift to Mrs. Ashton alone. There must, therefore, be some amendment of the allegation to correspond with the evidence ; or the decree, if entered in favor of both the sisters, must be entered by consent.  