
    Etta Moore, Individually, and as Administratrix, etc., of William S. Smith, Deceased, Respondent, v. Peter R. Fingar, as Administrator, etc., of Augusta C. Smith, Deceased, Appellant.
    Third Department,
    March 24, 1909.
    Banking — deposit to credit of husband apd wife — evidence — admissions against interest — statements of donor made after gift.
    Where a husband deposits his own money in a savings bank in his name and that of his wife, the sum “ payable to either or the survivor,’’ the account on its face imports a gift to the wife, and she has an equal right with him to draw the deposit during their joint lives and an absolute title in case she survives him.
    In an action brought by'the ádministratrix of a husband who made such a deposit, against the administrator of his wife, who survived him, to recover the deposit on the theory that it was the intention of the parties to give the wife only a life estate therein, evidence of the admissions of the wife against her interest and declarations made by either the husband or wife in the presence and hearing of the other are admissible.
    Evidence of a statement made by the husband to his daughter to the effect that the money should belong to her at his death, not made in the presence and hearing of the wife, is incompetent under section 829 of the Code of Civil Procedure and also because the declarations of a donor of personal property made after the gift are ineffective to defeat the title of the donee.-
    Appeal by the defendant, Peter R. Pingar, as administrator, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Columbia on the 26th day of June, 1908, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on tlie 24tli day of July, 1908, denying the dtefend'ant’s motion for-a nexv trial made upon the minutes.
    Tlie action is. brought to recover the amount of á savings bank account. The. plaintiff is the administratrix and only child of "William S. Smith, deceased. Tlie defendant is the brother and administrator of his .widow, Augusta C. Smith, and one of her next of kin. She was the second wife of said William S. Smith, having married him in 1874, and was the stepmother of the plaintiff. The plaintiff and the defendant each claim to own the account. In 1891 Smith opened'the account with money deposited by-him and had the bank book issued in the names of “ William S. and Augusta C. Smith.” A,bout ten years: thereafter, in 1901, the account was changed by adding the words, “ Payable to either or the survivor.” Smith died November 6, 1901. Mrs. Smith died September 25, 1907, not having withdrawn anything from the account. At the close of the plaintiff’s proof the court: dismissed the complaint so' far as she claimed to recoxmr individually and left the action to proceed in her name as administratrix.
    The court on the trial submitted to the jury this1 question : “Did William S. Smith make and continue the depo.sit of his money in the Great Barrington Savings Bank in the name of himself and wife solely with the intent that his wife, Augusta O. Smith, might draw money therefrom, if needed for their use during his lifetime and for her use after his déath?”
    The jury ansxvered the question in the affirmative and the court thereupon directed a general verdict for the plaintiff, to xvliiclrdirection the defendant excepted as well as to the submission of such quéstion to the jury. From the judgment" entered upon such verdict the defendant appeals.
    
      William Wallace Chace, for the appellant.
    
      John L. Crandell, for the respondent.
   Chester, J.:

I think it is within the- authorities to say. that,where a husband-deposits his money in á savings bank in his name and that of his wife with the account payable to either or the survivor,” as was the cáse here, the account on its face imports a gift of the fund to her and that she has such an interest in it as gives her the equal right with him to draw it during their joint lives and vests her with its absolute title in case she survives him. (Augsbury v. Shurtliff, 114 App. Div. 626; affd., 190 N. Y. 507; Sanford v. Sanford, 45 id. 723; McElroy v. Albany Savings Bank, 8 App. Div. 46; Matter of Meehan, 59 id. 156.)

In the MoElroy case above cited James 0. Bell made a deposit of his own money in a savings bank “in account with Mrs. Alida B. Bell, or James C. Bell, her husband, or the survivor of them,” and Mrs. Bell survived her husband. It was held that a deposit in that form should be deemed to have the same meaning and effect as would a deposit to the credit of Alida P. Bell and James C. Bell, and constituted the parties joint owners of the sum deposited and entitles the wife, if she survives the husband, to take the deposit, and that in such a case it was not essential to the validity of the gift that the pass book should be delivered to the wife or remain in her possession during her lifetime. That case in effect holds that a deposit in the form in which the one in question here was made was effective as a gift to the wife of the entire fund in case she survived him. (See, also, McElroy v. National Savings Bank, 8 App. Div. 192.)

There are authorities, however, to the effect that the mere form of the account alone will not be regarded as conclusively establishing the intent of the person making such deposit, to give the other a joint interest in or ownership of the fund. (Beaver v. Beaver, 117 N. Y. 421; Matter of Bolin, 136 id. 177; Matter of Totten, 179 id. 112; Schneider v. Schneider, No. 1, 122 App. Div. 774.)

The authorities all recognize that the fact that the donor and donee are husband and wife is of great materiality in. determining the intent of the parties, and that in such cases the unity of husband and wife is an important element in determining the right of survivorship.

The testimony of the treasurer of the savings bank affords us no light as to what took place at the time the deposit was made and the account changed beyond the mere facts of the deposit and the change. He gives nothing except the form of the account to indicate the purpose or intent of the husband in making the deposit originally or in making the subsequent change. On the face of it, therefore, the rights of the wife were fixed and her title to the fund secure in case she survived him.

In order to avoid the conclusion based on the account itself that Mrs. Smith became the owner of the fund on the death of her husband,. the respondent claimed on the trial and was permitted over objections and exceptions to prove conversations with the husband and admissions by the wife subsequent to the deposit, and not a part of the res gestee, that the intent of the parties in .making the deposit and changing the account was to allow Mrs. Smith to draw such part of the money as "she and her husband might need or as she needed for her support in case she survived her husband, and that whatever remained after her death was to go to the plaintiff as the sole next of kin. of Mr. Smith. The correctness of these rulings present the only questions we need to consider in determining this appeal.

The admissions of Mrs. Smith, testified to by competent witnesses, were undoubtedly properly received «as declarations against her interest, as were-also any declarations made by either Mr. or Mrs. Smith in the presence and hearing of each other.

The plaintiff was permitted to swear to a conversation with her father in the spring of 1901, shortly before his death; that he told her with respect to the account at the Great Barrington Bank, “ that money is yóurs and it has been left there for you, but your stepmother has got me to put her name on it so she could use it if necessary. It is there and when, she dies it is" all yours.” It does not appear that this was said in the presence and hearing of Mrs. Smith.

This evidence was incompetent under section 829 of the Code of Civil Procedure, as it was given by a party and a person. interested in the event, in her own behalf, against the defendant, who derived his title and interest in the fund from his deceased sister, whose title and interest in turn came from her deceased husband, the father of plaintiff, and the evidence was concerning a personal transaction or communication between the witness and her deceased father. It comes, therefore, within the express prohibition of the section.,

The evidence was improperly received for another reason, and that is that the declarations of a donor or assignor of personal property, made after the gift or salg, are incompetent and ineffective for defeating the claim or title of a donee or assignee. (Scheps v. Bowery Savings Bank, 97 App. Div. 434; Brown v. Mailler, 12 N. Y. 118; Van Gelder v. Van Gelder, 81 id. 625; Lent v. Shear, 160 id. 462; Wangner v. Grimm, 169 id. 421; Kelly v. Beers, 194 id. 60.)

In the Kelly case, last cited, one Mrs. Beers changed a deposit standing in her name so as .to make it payable to her “or Sarah E. Kelly, her daughter, or survivor.” After making it Mrs. Beers made a codicil to her will assuming to dispose of the deposit, treating it as subject to her testamentary disposition, and the court held that that "was not effective to revoke her prior intention andthe'acts already consummated. Judge Hiscook, in writing the opinion, says: “ I see no difference in this respect between a case of consummated gift of a deposit and one of a trust in and of such a deposit, as protected from subsequent declarations and acts. (Mabie v. Bailey, 95 N. Y. 206; Scheps v. Bowery Sav. Bank, 97 App. Div. 434; Robinson v. Appleby, 69 App. Div. 509; affirmed, 173 N. Y. 626.) ” The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  