
    Minerva J. Beaver, Executrix, Resp’t, v. Charles C. Beaver et al., Administrators, App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 6, 1889.)
    
    Gift—Executed—Deposit in bank.
    A father deposited certain money belonging to him in a savings bank to the credit of his son, a minor. The father continued in possession of the bank book until his death, which occurred subsequent to that of the son. Held, that there was an executed gift to the son.
    Appeal from a judgment entered in favor of plaintiff at the Ulster county circuit court.
    The action was brought to recover a sum of money deposited by defendant’s intestate in a savings bank to the credit of his son, the plaintiff’s testator.
    The following opinion was rendered by the court below:
    
      “Mayham, J.—On the 5th day of July, 1866, John 0. Beaver deposited in the Ulster County Savings Institution $854.04, and received from said institution a book headed as follows: ‘Ulster County Savings Institution, in account with Asahel G. Beaver.’ On the debtor side of that account the institution charges itself, July 5, 1866, with $854.04. On the same book, and under date of October 5th of the same year, it charges itself with $145.96. These charges are signed, respectively, by the treasurer of said institution". On the credit side of said account the institution is credited, under date of April 6, 1867, by cash, $27.29, under which is written, in his own handwriting, the name of John 0. Beaver. The book shows that from time to time the interest upon the balance of this account is added to the principal, which at the last computation, January 1, 1888, amounts to the sum of $2,713.70. John 0. Beaver was the father of Asahel Beaver, who at the time of the making of the first deposit was about seventeen years of age, and resided with his father, John 0.
    “At the time of making the deposit first above referred to, the following statement was made upon the book of the savings institution: ‘I, Asahel G. Beaver, of Esopus, Ulster county, hereby request the officers of the Ulster County Savings Institution to receive from me the sum of $854.04, and to open an account with me in said institution, which account shall be subject to all the regulations and restrictions contained in the by-laws, a copy of which I hereby acknowledge to have received, and bind and obligate myself, my heirs and representatives, to conform thereto, and to be governed thereby in all respects. Witness my hand, this 5th day of July, 1866. Residence, Esopus; age, seventeen years; place of birth, Esopus. [Under this was written, in his own hand, the name of] John 0. Beaver.’
    “The evidence does not disclose who paid into the savings institution the $145.96. The book received by John O. Beaver, at the time of making the deposit by him, was retained by him, and was found by the defendants among his papers after his death. There is no positive proof that the money deposited by John 0. Beaver, on the 5th day of July, 1866, was his, but, I think, the evidence justifies the conclusion that it was, and, therefore, I so find as a question of fact. But, as there is no evidence in the case except that appearing on the face of the book as to the title or source from which the $145.96 came, I shall hold and find as a question of fact that it was the money of Asahel G. Beaver, and deposited by him or for his benefit. That being so, the plaintiff would be entitled to that amount, and its accumulation from the time of the deposit.
    “The remaining contention is as to whether the facts in this case show an executed gift of the $854.04 by John 0. Beaver to Asahel Beaver, at the time of the deposit of that sum in the savings institution. Asahel G. Beaver died before his father, and by his will devised and bequeathed all his property to his widow, and made her his sole executrix. who duly qualified as such. John 0. Beaver died before the commencement of this action, intestate, and the defendants were duly appointed his administrators. If the deposit of this $854.04 by John O. Beaver, in the bank, in the name of Asahel GK Beaver, was, under the circumstances of the case, an executed gift, then the plaintiff is entitled to it and its accumulations. If it was not an executed gift, then the title to the same remained in John O. Beaver, and on his death vested in his personal representatives, in which case the plaintiff could not recover as to that same. The rule that a gift, to be effectual, must be executed, is elementary, and requires no reference to citations of authorities. The question as to what constitutes an executed gift is more difficult of solution. The act of the defendant’s intestate, in depositing the money in the savings institution in the name of, and to the credit of, the plaintiff’s testator, vested the title in him, if John 0., at that time, intended to vest the title in Asahel. That intention must be gathered from the circumstances bearing upon the subject. John 0. received from the bank an account or pass-book ¿cknowledging the disposal of that money by Asahel, and crediting the same to him. He also signed a statement left with the bank, in which he in effect declares that Asahel deposited the money. This prima facie showed that the money was deposited for and as the property of the plaintiff’s testator. Ho act or declaration of the defendant’s intestate tends to change this prima facie case, except the fact that intestate kept the book; and while this is competent evidence to be considered upon the question of intent, it is by no means conclusive upon that subject. John 0. Beaver, at the time of the deposit, so far as appears, made no reservation or exception, and imposed no qualification upon the apparent absolute title, which was vested in Asahel by the disposal of the money in the savings institution to his credit. That act, unexplained, vested the title in Asahel. Barker v.Harbeck (7 N. Y. St. R., 678). If John 0. intended at the time and by act of deposit to give Asahel the money, his right to it then became complete. Although John 0. retained the pass-book, he would be deemed to hold it in trust for Asahel. Orr v. McGregor, 43 Hun, 531. The legal consequences of such a deposit was to make the savings institution the debtor of Asahel, and not of John 0., and, unexplained, he is presumed to have intended the consequences of his act. Is the fact that he retained possession of the pass-book, standing alone, sufficient to excuse him from the effect of such deposit ? I think not. The deposit was made for his infant son, over whose property, as well as person, the father naturally and properly exercised some control. If the money deposited had before the deposit belonged to Asahel, the father would in all probability have taken care of the book, and, if he had, under such circumstances his possession of the book would have cast no suspicion upon Asahel’s title to the money. The unqualified deposit of the money to Asahel’s credit made it prima facie his as effectually as if it originally belonged to him, and the retention of the book by his father, when on the face of the book the money appeared to belong to the son, was not sufficient alone to defeat his title, or that John 0. did not intend at the time of the deposit the legal consequences of his act. By the by-laws of the savings institution the money could be drawn on drafts made personally or by order, in writing, of the depositor, or by letters of the attorney duly authenticated; but no person shall have a right to any part of the principal or interest without the production of the original book, so that such payments shall be entered therein. This by-law, which constitutes a part of the contract between the company and depositor, would not justify a third person in controlling, or drawing, the money on presentation of the pass-book. The money can only be drawn on the order of the person to whose credit it is deposited, on presentation of the book.
    “The mere possession of the book, therefore, by a stranger, would not give him either title to, or possession of, the fund. The book was only evidence of the deposit, and, not being negotiable, its possession by a person other than the one in whose name the account stood would afford no evidence sufficient to justify or require the savings institution to pay the deposit to such holder. Possession by a stranger of a pass-book of a depositor in a savings bank constitutes no evidence of a right to draw money thereon. To make payments to one having no other evidence of authority than possession of the book, as a protection to the bank, it is necessary for it to show some special contract with the depositor authorizing such a mode of payment. Smith v. Bank, 101 N. Y., 58.
    It will be seen, therefore, that the mere possession of the book by defendants’ intestate would not be evidence sufficient to overcome the effect of the deposit which was in the name of, and to the credit of, Asahel, by which prima facie he became the owner of the deposit. I do not think that the case referred to by the learned counsel for the defendants bears upon the real question in this case. Most of such citations relate to cases where there was some further act to be done by the donor, or some future contingency to occur, before the title and possession vested in the donee.
    “ From the facts disclosed in this case, no such future act or future contingency was referred to or embraced in the transaction by which the plaintiff’s testator acquired title to his fund. The deposit of the money for and credit of the same to the account of the plaintiff’s testator were positive, complete, and unequivocal acts, sufficient in law to vest the title in him at the time of the deposit; and there is no contemporaneous or subsequent act of the defendants’ intestate which justifies the conclusion that he did not at the time of the deposit intend to part with all dominion and control of the money, and vest the title thereto absolutely in Asahel. I am therefore led to the conclusion that John O. Beaver, at the time he deposited the $854.04 in the Ulster County Savings Institution to the credit of Asahel Gr. Beaver, intended to and did make an executed gift of said money to the said Asahel Gf., who therefore became the owner thereof, and that said sum, with its accumulations, belonged to him at the time of his death, and under his will vested in bis executrix, and that she, as such executrix, is entitled to recover the samo in this action.”
    
      Í). M. JDe Witt, forapp’lts; F. L. Westbrook, forresp’t.
   Learned, P. J.

The opinion of the learned' justice, who decided this case is quite satisfactory. We should think nothing further needed if the appellants had not so strongly urged that there was no executed gift. Their argument rests on the fact that John O. Beaver continued in possession of the pass-book. Now (assuming that the money was originally tho property of John 0.), the thing given was the money, not the book. John 0. parted with possession of the money and put it under the control of Asahel. Asahel could draw the money and could give a valid receipt therefor, that is as soon as he was of age. Before that time, his guardian could do the same. But it may be said he could not draw it without possession of the pass-book. This provision is for the security of the bank, which might be liable to a person to whom the bank-book had been assigned. Warhus v. Bowery Savings Bank, 21 N. Y., 543; National Bank v. Washington County Bank, 5 Hun, 605. But it has nothing to do with the question of title to the money. For instance, one holding a certificate of deposit payable on its return is the owner of the money deposited. Yet to obtain that money, he needs possession of the certificate. But further still, “the pass-book is not negotiable paper, and its possession constitutes of itself no evidence of a right to draw money thereon. Smith v. Brooklyn Savings Bank, 101 N. Y., 58.

In Martin v. Funk (75 N. Y., 134), a deposit was made by A in her name, “in trust for B.” A kept the passbook and drew the interest till her death, and B was ignorant of the deposit. It was held that the deposit belonged to B. Now it was not claimed that there was any active trust. A had no duties to discharge in managing the property. And the decision really was that the deposit belonged to B.

In the present case if John O. had deposited the money in his own name in trust for Asahel, we should have the very circumstances of Martin v. Funk. But John O. did more. He did not retain even the nominal title to the deposit, giving Asahel the beneficiary interest. He put the whole title in Asahel. In Martin v. Funk the retaining of the pass-book was said to be as trustee. Here it may properly be said to to have been as friend or natural guardian. And we must notice in regard to Massachusetts’ cases, that Martin v. Funk is not in harmony with Massachusetts decisions. But it is our law and it is thoroughly sound, common sense, like everything else which came from the learned judge who wrote the opinion.

It seems to be conclusive from the case of Mabie v. Bailey (95 N. Y., 206), that John 0. could not have drawn out this money, even though he was in possession of the pass book.

In Scott v.Harbeck, Executor (49 Hun, 292), money stood in a savings bank in the name of defendant’s testatrix, in trust for plaintiff. The deceased drew it out and used it. Her estate was held liable, although plaintiff had no knowledge of the trust.

Another suggestion may be made. Suppose no pass-book had been issued, or suppose, as is sometimes the practice, the bank had kept the custody of the pass-book; would there be any doubt then that the deposit belonged to Asahel ? The pass-book is a mere voucher; mere evidence against the bank. The rights of the parties rest in the terms of the deposit shown on the books of the banks and duplicated in the pass-book.

For these reasons, and on the opinion of the learned justice, the judgment should be affirmed, with costs.

Ingalls, J., concurs; Landon, J., concurs, not without doubt.  