
    Minerva J. Beaver, Ex’rx, Resp’t, v. Charles C. Beaver et al., Adm’rs, App’lts.
    
    
      (Court of Appeals,
    
    
      Filed January 17, 1893.)
    
    1. Gd?t.
    B. in. 1866 deposited money belonging to him in the savings bank, where it was credited to his son A., then seventeen years of age, but B. retained exclusive possession of the pass-hook until 1888, when he died. A. having married in 1870, opened an account of his own, but drew out the entire balance of his own account a few months before his death in 1886. During B’s life he said in reference to his son A.: “I started him in life and gave him $1,000, put it in the bank for him, and told him that I wanted he should let it be there, and if he got short of money at any time to come to me." Ten years after the making of the deposit by the father his son gave him a receipt in full, and the plaintiff did nothing toward recovering the money for two years after her husband’s death, or until after the father died. Held, that there was not an executed gift, but only the intention to make a gift was proven.
    2. Same—Evidence—Code § 829.
    Testimony was admitted relating to the retention of the pass-book by B. during his lifetime, of A.’s financial circumstances, and to his borrowing money of his father. Held, that plaintiff could not be prejudiced by admission of evidence on the part of the defense, which was unnecessary for the defense.
    Appeal from judgment of the supreme court, general term, third department, affirming judgment in favor of defendants.
    
      A. T. Clearwater, for app’lts;
    
      F, L. Westbrook, for resp’t.
    
      
       Reversing 41 St. Rep., 607.
    
   Gray, J.

When this case was here before, it received a very careful consideration and the opinion, which was delivered by Judge Andrews, very fully reviewed the question of the respective rights of the parties to the savings bank deposits, with the light thrown upon it by the record. See case reported in 117 N. Y., 421; 27 St. Rep., 405.

It is not necessary that there should be any full statement here of the facts; which by reference to our former decision will fully appear. The defendant’s intestate, John O. Beaver, deposited certain moneys belonging to him in a savings bank, which were credited upon its books to his son, Aziel Beaver. This was in 1866, when the son was seventeen years of age. His father retained possession of the pass-book at all times until his death in 1888, twenty-two years after the deposit. The son was, at the time of the deposit, living with his father and he, in 1870, opened an account of his own in the same bank; having meanwhile married and settled upon his own farm in the neighborhood of his father’s. He predeceased his father by two years; leaving him surviving a widow, but no child. The deposit of $170, with which he had opened his own account in the savings bank in 1870, had grown to be $1,818.56 when, a few months before his death, in 1886, he drew it all out. By his will he left everything to his wife; but she does not appear to have done anything about obtaining the deposit in question, which John 0. Beaver had made, until after his death; which occurred two years after her husband’s, when she made a demand upon the bank. We previously held, reversing a judgment which she had recovered, that there was not only a failure to prove an intent on the part of the father to make a gift; but that the case was defective as to there being any delivery, actual or constructive, two essential things to be established to constitute a perfect gift. As the case then stood, the only evidence relied upon to establish an intent to make a gift was the transaction at the bank, on the day of making the deposit, in connection with the relationship of the parties. This was deemed insufficient evidence for the purpose, and subsequent acts of the father negatived the inference of any such intent.

Upon this last trial certain new evidence was adduced, in the testimony of the plaintiff’s father as to a conversation between him and John 0. Beaver upon the day of the death of-his son, Aziel, to the effect of his preference for Aziel and of his having helped him, and of having loaned him moneys. He is said to have remarked upon that occasion to the witness, in reference to his son : “I started him in life and gave him $1,000, put it in the bank for him, and told him that I wanted he should let it be there, and if he got short of money at any time to come to me.” The -other new evidence is unimportant and need not be commented upon. The evidence apparently satisfied the trial judge, and he inferred and found the intent of Aziel’s father to deposit the moneys “ with the purpose and with the intent that such moneys shoulcl thereafter be and remain the property of Aziel Beaver.” Whatever our own idea about the new evidence, as we cannot say that this finding was without any evidence to support it, we must accept it, as also the other finding, that the delivery of the moneys to the bank were “with intent to pass the title thereto to Aziel." The trial judge, however, refused to find, as matter of law, that there was an executed and completed gift, and, therefore, dismissed the complaint. Two of the justices of the general term have concurred in reversing the trial court, considering, under all the circumstances, in the relationship of the parties, in the minority of the son, and in the intent with which the deposit was made, that the transaction was practically the same as though the moneys had been deposited in the name of the donor in trust for the donee; in which case notice or delivery would be unnecessary to validate the transaction as a gift to the cestui que trust. Tire opinion of the general term did not appreciate the force of the opinion of this court upon the former appeal, when the theory of a possible trust was considered and denied, because there was neither an explicit declaration of trust-, nor the presence of circumstances to show, beyond a reasonable doubt, that a trust was intended to be created. The new evidence, and the findings based upon it, do not alter the legal situation, nor warrant the inference of a trust. The finding of an intent to give is inconsistent with the theory of a trust. The new evidence proved only that the father had taken an ostensible step toward making a gift of moneys to his son; but, though an essential step, the transaction not only remained incomplete, but all that subsequently occurred negatived the theory of any consummation of the gift and precludes our supposing that the father, in subsequent years, considered the moneys on deposit to be his son’s.

The facts which Judge Andrews refers to upon the question of delivery, such as the retention of the possession of the pass book, the effect of the bank’s rules in vesting the father with the exclusive dominion over the account, and with the exclusive right to draw upon it as long as he retained the pass book, and the lack of the son’s signature, in connection with the bank’s rules governing its relations with the depositor, made the situation such as never to have placed Aziel in a situation to control the account, and always to leave his father with full authority over it, which be seems to have exercised in several ways. The father not only never did an act equivalent to a delivery, but the circumstances evidence no subsequent intention on his part to perfect his gift. It is very significant that the son lived to be thirty-seven years of age, and died without ever receiving the moneys, or ever having had the bank book ; that, in the meantime, he opened an account of his own in the same bank, which he, from time to time, swelled by deposits, and which he closed up shortly before his death; that some ten years after the making by his father of the deposit in question, the son gave to his father a writing, signed bv himself, and acknowledging that he had “ received of John 0. Beaver (his father) $200, being in'full of all dues, debts and demands to date; ” that the son’s widow should have done nothing towards recovering the money for two years after her husband’s death, nor until the father had died. I may add, that I do not think the evidence at all sufficient to show that the son ever knew of the deposit in his name. The inference is irresistible that neither she nor he ever knew of this deposit. It is inconceivable that the father, assuming the fact found as to his original intention, continued in the same mind. In The Matter of Crawford, 113 N.Y., 560; 23 St. Rep., 722, the pass book was delivered to Mrs. Orawford, the donee, and the moneys deposited to her credit came fully and legally into her possession and control. But as the bonds, which she also claimed to have been given to her, were always retained by the intending donor, though they had been purchased with the undoubted intention of giving them to Mrs. Crawford, and had been actually registered in her name, we held that there had never been a completion of the gift as to them. In the Crawford case, Martin v. Funk, 75 N. Y., 134, was considered in its bearing upon the question ; but we held that the principle of the decision of that and kindred cases did not apply, inasmuch as there was neither any declaration of a trust, nor anything to characterize the transaction as a trust

As the present case stood, upon the findings and the evidence, only the intention to make a gift was proved. That was an element in the transaction which, however satisfactorily established, was rendered of no effect by a failure of any proof of delivery to, or of acceptance by the intended donee. There was not a fact to support a conclusion of the creation of a trust, nor a fact to show the existence of a mutual disposition of the minds of the parties at any time in relation to the matter, from which the idea of a gift perfected by some act of delivery or of acceptance could be formed.

The trial judge, in refusing to decide that there had been an executed gift, reached the only conclusion warranted by a rational view of the evidence, and the general, term has erred in holding that the evidence justified a different conclusion. Unless, thereiore, there was some error committed upon the trial, by which the plaintiff was prejudiced, the order of the general term, reversing the judgment for the defendant, and ordering a new trial, must be reversed. The only error assigned which I think requires any consideration, related to the admission of the testimony of Sarah Beaver, the widow of John, the defendant’s intestate, and of Alice Beaver, his daughter.

The testimony related to the retention by John 0. Beaver of the pass book during his lifetime, and to Aziel’s financial circumstances, and to Ms borrowing money of Ms father. The objection was that the testimony was inadmissible under § 829 of the Code of Civil Procedure.

It is a sufficient answer to the question of error, however, that the plaintiff could not be prejudiced by the admission of evidence on the part of the defense, which was unnecessary for the defense. The burden of proof was upon the plaintiff to show the presence in the transaction of every element to constitute the perfect gift, and having, at most, proved the intention to give, her case was ’ready defective for the failure to prove completion by delivery, -.i' its equivalent.

I think the order of the general term should be reversed, and that the judgment recovered at the circuit should be affirmed, with costs to the appellants.

All concur.  