
    Mack v. Mechanics’ & Farmers’ Sav. Bank et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    December 31,1888.)
    ■Tenancy in Common and Joint Tenancy—Bank Accounts—Subvivobship.
    A depositor had his bank account changed into an account with him and his mother, “order of either of them,” she signing the signature book at the time. Afterwards, speaking of the account, and showing her the book, he said, “This is yours. ” He retained the pass-book about a month, but on the day before his death sent it to his mother, with directions to tell her to keep it for him. Held sufficient ■to create a joint tenancy in the fund, and that upon his death it vested in the mother .as survivor.
    Appeal from judgment on report of referee.
    Action by Mary Mack, administratrix of Valentine Mack, deceased, against •the Mechanics’ & Farmers’ Saving Bank of Albany, impleaded with Mary Mack. Plaintiff appeals.
    Argued, before Learned, P. J., and Landon and Ingalls, JJ.
    
      J. W. Baker, for appellant. Mead & Satt, for respondents.
   Learned, P. J.

This is an action in which the plaintiff, as administratrix •of Valentine Mack, deceased, seeks to obtain a deposit which, at his death, was in the Mechanics’ & Farmers’ Saving Bank, and which Mary Mack, (another person,) one of the defendants, claims to belong to her. The referee-decided in favor of the defendant Mary, and the plaintiff appeals. The deceased, Valentine Mack, prior to September 1, 1887, had made deposit in the-Mechanics’ & Farmers’ Saving Bank in his own name. On that day he came-with the defendant Mary, his mother, to the bank, and had this account-changed, so as to read, “Mechanics’ & Farmers’ Saving Bank of Albany, in-account with Valentine Mack and Mrs. Mary Mack, order of either of them.” She at that time signed the signature book in the bank. It is proved that on one occasion afterwards Valentine, speaking of this account to his mother, and showing the book, said, “This is yours.” We cannot say that this was-a gift of the whole deposit to Mary, because Valentine still retained as much control over it as he conferred upon her. The deposit was in the name of both, and could be drawn by either. Both, therefore, were interested in it, while it might be safely paid to either. There would be a practical difficulty in the way of Mary’s drawing the money, because for a month afterwardsValentine retained the pass-book, and, as is usual, the rules of the bank required the production of the book, on depositing or drawing out money. But-that circumstance, of itself, does not settle the rights of the depositors in respect-to the money. There is no evidence as to their rights, except the facts above stated, and the. further fact that, the day before his death, Valentine sent the book to Mary (his mother) with the message: “Tell my mother to keep it for me.” How, if this money belonged to Valentine and Mary as tenants in common, each would presumably be the owner of one-half; if it belonged to them as joint tenants, it would go to the survivor. The circumstances are not conclusive. But it seems to us that they point to a joint tenancy; for the whole-amount was payable to either. Therefore, according to the terms, the amount, would seem to be now payable to Mary, on her demand. The delivery of the book to her, accompanied by the message above quoted, would perhaps have-been insufficient to establish a gift, had the money then stood in Valentine’s-name. But, as she theri had already the right to draw the money, the possession of the book gave her complete power on that day to draw out the money for herself. The transfer of the account to the two names was a gift of some-kind to the defendant Mary, and her rights do not rest solely on the delivery of the book. If the question is one of intent, as was said in Orr v. McGregor, 43 Hun, 528, then the defendant has the finding of the referee in her favor. In that case the want of knowledge of the transaction on the part of the donee was considered to be a circumstance tending to disprove the alleged gift. Here the defendant knew and was a party to the transfer on the bankbook, signing her name in the signature book. Ho other question is presented on the appellant’s points except those which we have considered. Judgment affirmed, with costs. All concur.  