
    Thomas Farrelly, as Temporary Administrator, etc., of Frank J. Smith, an Absentee, Appellant, v. The Emigrant Industrial Savings Bank and Patrick Reilly, as Administrator, etc., of Margaret Reilly, Deceased, Respondents.
    
      Savings bank deposit — change of the account by the depositor so as to read “In account with Margaret Smith {the depositor), or son Frank J.”—delivery of the bank book to a third person with instructions to deliver it to the son — the son takes the deposit if he survives his mother — quaere whether the transaction constituted, a gift inter vivos. '
    Evidence that one Margaret Smith who had opened a savings bank account in her own name subsequently procured the passbook to be changed so as to read, “In account with Margaret Smith or son Frank J.,’’ and that a short time prior to her death she gave the passbook to her sister with directions to keep the same for her son, whose whereabouts were then unknown, and if he came back to give it to him, is sufficient to authorize a finding that it was the intent of the mother to make her son a joint owner with her in the fund, and that upon the death of the mother leaving the son surviving, the son took immediate title to the fund by right of survivorship, even though the passbook was not delivered to hinj during his mother’s lifetime.
    
      Quaere, whether the delivery of the passbook by the said Margaret Smith to her sister under the instructions set forth above, established a gift inter vivos of the bank account to her son.-
    Appeal by the plaintiff, Thomas Farrelly, as temporary administrator, etc., of Frank J. Smith, an absentee, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 18th day of November, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint and adjudging the defendant administrator to be entitled to a certain fund on deposit in the defendant bank.,
    
      Lawrence. E. Brown, for the appellant.
    
      James J. Fitzgerald^ for the respondents.
   Hatch, J.:

This action was brought to determine the ownership of a fund deposited .in the defendant savings bank by Margaret Smith. The account appears to have been opened in her name on the 13th day of October, 1874, upon which date a deposit was made of $1,900, and a passbook issued to her. She thereafter appears to have, made deposits in various amounts in the account down to about July 24* 1880, when the passbook was changed at her instance so as to read, in account with Margaret Smith or son Frank J.” Several deposits were made thereafter, the last of which was under date of January 6, 1886. The amount of the account upon the 7th day of October, 1903, the date of the trial, was $3,763.49. Margaret Smith at the time of opening the deposit was a widow; her only child was Frank J. Smith; his father died during his early infancy. Many years after the death of her husband Margaret Smith married the defendant Patrick Reilly, with whom she continued to live down to the date of her death, which occurred on the 17th day.of April; 1886. At the time of her death the whereabouts of her son Frank J. Smith were unknown, and whether he was alive or dead at that time is not made to appear in this record. A short time prior to " the death of Margaret Smith Reilly she gave the passbook to her sister Ellen Bannon, with the direction that she keep the same for ’ Frank, and if her son came back to give it to him.”. Subsequently Mrs. Bannon, who has since become and now is hopelessly insane, gave the book to a cousin, who was the wife of Patrick Reilly, but who was not the defendant Reilly, although of the' same name Mrs. Reilly retained the book for some time and then gave it to her husband. 'He kept it for many years when he was directed by the Surrogate’s Court to deliver it to the defendant administrator of Margaret Smith Reilty, deceased.

■ The plaintiff seeks to sustain his right to the fund upon the theory of a gift inter vivos from Margaret Smith Reilly, the - mother, to the son, Frank J. Smith. The court below held, and it may be, that the .evidence was. insufficient to support the action upon the theory of a gift inter vivos. .(Mack v. Mechanics & Farmers' Savings Bank, 50 Hun, 477.)

There is some authority for holding that the change in the form of deposit, by which the son was enabled to draw equally with the mother, is evidence of an intent upon the. part of the mother to constitute the son a joint-owner' with her in the fund. Whether the deposit standing alone, disassociated from any other fact, would have such effect it is not necessary for us now to determine, and we express no opinion thereon. Taking into consideration, however, the form of the deposit, the delivery of the book with directions to deliver to the son, it would clearly authorize the court to find that it was the intent upon the- part of the mother to vest in the son a joint ownership with her of the money, and being vested with such ownership the survivor would take the whole. (McElroy v. National Savings Bank, 8 App. Div. 192; Matter of Meehan, 59 id. 156; Mack v. Mechanics & Farmers' Savings Bank, supra) Matter of Bolin (136 N. Y. 177) is not in conflict with this view. That decision is to be limited to the particular facts upon which it was based. All it decides is that, under the circumstances which were made to appear therein, the only purpose of depositing in the names of both was for matter of convenience, and such fact appearing it was held to destroy the force and effect of the deposit in the joint names as constituting a joint tenancy. Where, however, the deposit is in joint names and the intent appears to create the joint tenancy, its effect is to vest title to the whole fund in the survivor, and under such circumstances, whether the book be delivered to the survivor or not, or whether he ever has had it in his possession during the lifetime of his joint owner, is not of consequence, as the intent existing to create the relation of a joint tenancy, title vested in the survivor eo wistanti upon the death of the joint owner, and no delivery of anything is necessary to effectuate such result. : We think there can be little doubt in the present case but that the intent of the mother was to make her son joint owner with her in the fund, in consequence of which he took immediate title if he survived the mother. It became, however, incumbent upon the plaintiff to show such survivorship, and in this he failed. The only proof given upon the subject was that the son, Frank J. Smith, visited his mother about two years before she died. In 1881 she received a letter from him from Denver, in Colorado, as we assume. So far as it is made to appear, all trace of him since that time has been lost. The mother did not die until the 17th day of April, 1886. There is no evidence showing that upon that date-Frank J. Smith was alive; consequently it is not made to appear that he was the survivor of his mother, and, therefore, the plaintiff shows no title in himself to this fund.

It follows that the judgment was correct, and it shouldj therefore, be affirmed, with costs..

Van Bbunt, P. J., O’Brien, Ingraham and' McLaughlin, JJ., concurred.

Judgment affirmed, with costs.  