
    Commercial Trust Company of New Jersey, executor, &c., complainant, v. Lettie A. White et al., defendants.
    [Filed March 26th, 1926.]
    1. Where moneys belonging to one person are iby him deposited in a savings bank in the joint names of himself and another, the question whether or not the act of deposit accomplished a then, present transfer to the donee of an interest in the money in bank, depends upon the intent with which the donor made such deposit.
    2. Where the donor and donee signed a signature card by which a savings bank was directed to open an account in the names of “J. J. B. or L. A. D.,” with no further direction on the card with regard to the account, such form of deposit does not, in itself, constitute the donee a joint owner of the fund.
    3. In the absence of evidence that the words “either or the survivor to draw,” stamped on a savings bank pass book, were placed there at the donor’s direction, those words cannot be considered for the purpose of enlarging or explaining a signature card contract on which said words do not appear.
    
      4. Where the donor and donee signed a signature card by which a savings bank was directed to open an account in the names of “J. J. B. or L. A. D., as joint tenants, either and the survivor to draw,” or equivalent words, such form of deposit is evidence of a gift to the donee to take effect in prcesenti, and the balance to the credit of the account belongs to the donee on the death of the donor, unless it appears from the evidence that the donor had no donative intent in naming tfie donee as joint owner.
    5. The pass hook for the account contains a provision to the effect that no withdrawal shall be made from the account without production of the hook, and at the donor’s death the pass book was found in a safe deposit box standing in the joint names of himself and another. Held, that under the form of contract of deposit last mentioned, and in the absence of evidence to show that the donor had no donative intent of a gift in prwsenti to the donee, delivery of the pass book to the donee was not necessary to complete the gift.
    On bill, &c. On bill, answers, replication and oral proofs.
    This suit is brought to determine the ownership of nine special, or savings, accounts in banks in this state, all standing in the joint names of John J. Bullis and Lettie A. Dath. Mrs. Dath was Bullis’ sister, and some time after the accounts were opened she married Sidney White. Bullis died April 10th, 1924, Mrs. White surviving him, and the complainant is executor of his will. The bill of complaint alleges that all money deposited in the accounts was owned by Bullis, and that Mrs. White deposited no money in any of them, which allegation Mrs. White, by her filed answer, admitted. The bill further alleges that some legatees under Bullis’ will claim that Bullis opened the bank accounts in said joint names without intending to vest any right therein in Mrs. White, and that her name was used in the accounts as a matter of convenience for Bullis in making withdrawals therefrom, which allegation Mrs. White, by her answer, denied. Shortly after filing her answer Mrs. White died and the suit was revived against her husband as executor of her will. The contest here is between the executor of Bullis’ will and certain legatees thereunder on one side and the executor of Mrs. White’s will on the other.
    
      The pass books for all the accounts contain a provision to the effect that no withdrawals could be made from the accounts without production of the pass books, and at Bullís’ death all the pass books were found in a safe deposit box originally rented by Bullís April 16th, 1914, but for three years preceding his death held in the joint names of John J. Bullís and Sidney White, under rental conditions which gave Bullís and White, and each of them and the survivor, right of access to the box. No testimony was offered to show that the books had always been kept in this box, neither was there any testimony of any statement made by Bullís or Mrs. White before, at the time or after the accounts were opened, which would throw any light on the purpose or intent with which they became joint depositors. Following is a statement of the pertinent facts concerning each bank account:
    Hoboken Trust Company—
    Opened October 7th, 1914, in the names of "John J. Bullís ór Lettie A. Dath.” Both signed the signature card, but there is nothing thereon to show the purpose with which the account was opened.
    On the cover and on an inside page of the pass book are the printed words "Hoboken Trust Company in account with,” following which are written the names "John J. Bullís or Lettie A. Dath,” and nothing more.
    There were no withdrawals.
    Lincoln Trust Company—
    Opened originally January 3d, 1910, in the names of "John J. Bullís or Emma F. Bullís,” by a signature card on which appear the signatures of said depositors. October 7th, 1914, the name of Emma F. Bullís was inked out and the signature of Lettie A. Dath taken on a new card. No new account was opened and the balance then to the credit of the original account was carried along in the changed account. There is nothing on the old or the new signature card to show the purpose with which the account was opened. On the cover and on an inside page of the pass book are the printed words "Lincoln Trust Company in account with,” following which were written the names “John J. Bullis or Emma E. Bullis.” The name of Emma E. Bullis is inked out and the name of “Lettie A. Dath” written thereunder. On the cover, but separate from the other words, are stamped the words “either or the survivor to draw.”
    There was one withdrawal by draft signed by Bullis, for the amount of interest previously credited.
    Hudson Trust Company—
    Opened October 7th, 1914. The signature card contains the following:
    “Either signature to draw. This account is opened by us and intended to create a joint estate to us as joint tenants and not as tenants in common.
    [Signed] John J. Bullís, or
    [Signed] Lettie A. Dath.”
    On the cover and on an inside page of the pass book are written the names “John J. Bullis or Lettie A. Dath,” under which, in both places, are stamped the words “as joint tenants and not as tenants in common,” and on the cover'and inside the book, but separate from the other words, are stamped the words “either signature to draw.”
    . There were two withdrawals, both on drafts signed by Bullis, in each case for an amount of interest previously credited.
    Commercial Trust Company (No. 1813)—
    Opened originally January 14th, 1904, in the name of Bullis alone. Later, the name of Emma E. Bullis was added and subsequently erased and the name of Lettie A. Dath substituted October 7th, 1914. A new signature card was then made out on which appears the following:
    “This account and all money to be credited to it belong to us as joint tenants, and will be the absolute property of the survivor of us, either and the survivor to draw. We ¿¡0 each appoint the other attorney irrevocable with power to deposit in said joint account moneys of the other, and for that purpose to endorse any cheek, draft, note or other instrument payable to the order of -the other.
    [Signed] Lettie A. Dath, John J. Bullís.”
    
      The pass book shows it was issued iu the name of John J. Bullís or Emma E. Bullís, “either and the survivor to sign,” and that the latter name was stricken out and the name “Lettie A. Dath” substituted therefor.
    There were four withdrawals on drafts signed by Bullís, one of which, dated April 12th, 1916, for $3,500, was used to open a new account (No. 9873) in the same bank in the names of John J. Bullís or Lettie A. Dath. There were also two withdrawals on drafts signed by Mrs. Dath, one dated June 25th, 1923, and the other dated September 27th, 1923.
    Commercial Trust Company (No. 7236) —
    Opened originally June 27th, 1911, in the names of “John J. Bullís and Emma E. Bullís.” The name of Emma E. Bullís was stricken out and the name “Lettie A. Dath” substituted October 7th, 1914. A new signature card was then made out on which appear the same words as in the account last above, with the signatures “John J. Bullís, Lettie A. Dath,” appended.
    The pass book shows it was issued in the names of John J. Bullís or Emma E. Bullís, “either and the survivor to sign,” and that the latter name was stricken out and the name of Lettie A. Dath substituted therefor.
    There were two withdrawals on drafts signed by Bullís, also two on drafts signed by Mrs. Dath, one dated January 16th, 1922, and the other dated June 8th, 1922. All four drafts were for amounts different from the amounts of interest credits.
    Commercial Trust Company (No. 9873)-—
    Opened April 12th, 1916, in the names of John J. Bullís or Lettie A. Dath, by draft signed by Bullís against Commercial Trust Company account No. 1813. On the signature card both names appear signed under the same words as were used in account No. 1813 of the same bank. The pass book shows it was 'issued in the names of John J. Bullís or Lettie A. Dath, “either and the survivor to sign.”
    There was one withdrawal on draft signed by Bullís, also one on draft signed by Mrs. Dath, dated January 16th, 1922. Neither draft is for an amount of interest credit.
    
      Hoboken Bank for Savings-—
    Opened October 7th, 1914, in the names of John J. Bullis or Lettie A. Dath. Their signatures appear below an agreement which, in effect, states that they have deposited the sum with which the account was opened, and that they request the bank to open an account with them in their names; that they are the joint owners of the money deposited and thereafter to be deposited, and of the interest accruing thereon; that upon the death of either, the moneys then on deposit shall become the property of the survivor; that each, or the survivor, may at any time draw against the account. The pass book was issued in the names of “John J. Bullis or Lettie Á. Dath, payable to either or survivor.”
    There were two withdraw]s, both on drafts signed by Bullis for the amount of interest previously credited.
    Provident Institution for Savings (two accounts)-—
    Both opened January 5th, 1915, in the names of “John J. Bullis and Lettie A. Dath.” The signature cards signed by them are identical and contain the following: “This account and all money to be credited to it belong to us as joint tenants, and will be the absolute property of the survivor of us; either and the survivor to draw upon producing consent of any public officer required by taxation laws.”
    The pass books were issued in the names “Lettie A. Dath and John J. Bullis.”
    There were seven withdrawals from one account and eight from the other, all on drafts signed by Bullis. In each case these withdrawals, except the first one on each account, were for amounts of interest credits.
    
      Messrs. Fisk & Fisk, for the complainant.
    
      Mr. August G. Menge, for the defendant Lettie A. White.
    
      Mr. Pierce F. Cook, for the defendants Etta Bullis Wood et al.
   Fielder, V. C.

In opening the accounts, Bullís had either a donative intention of a then present gift to Mrs. White of an interest in the moneys deposited therein, with the right to receive what remained to the credit thereof at his death in case she survived him, or an intention merely to use her as a convenience in withdrawing money for him in his lifetime, with no beneficial interest to her in the monejr, except, perhaps, after his death, in case she survived him. There being no direct testimony to show what his purpose was, the rights of the donor and donee must be determined upon the effect to be given the writings which they signed and delivered to the several banks, in connection with the surrounding circumstances.

Taking up first the accounts with the Hudson Trust Company and the Lincoln Trust Company. The form of the deposits as appears from the signature cards is not evidence of a gift to her to take effect in prcesenti. Schick v. Grote, 42 N. J. Eq. 352; Skillman v. Wiegand, 54 N. J. Eq. 198; Taylor v. Coriell, 66 N. J. Eq. 262; Gordon v. Toler, 83 N. J. Eq. 25; McCullough v. Forrest, 84 N. J. Eq. 101; Morristown Trust Co. v. Capstick, 90 N. J. Eq. 22; affirmed, 91 N. J. Eq. 152. In the case of the Lincoln Trust Company account, the words “either or the survivor to draw,” stamped on the pass book, are not found in the contract entered into between Bullís, Mrs. White and the bank; they were evidently placed on the pass book by a bank official or employe. Not-' withstanding that these words are in plain sight on the pass book, which is assumed to have been always in Bullís’ possession, in the absence of any evidence that they were placed there by his direction or consent, I think they should not be considered for the purpose of enlarging or explaining the signature card contract signed by Bullís. Taking the signature cards, then, as showing the entire contract between Bullís, Mrs. White and these two banks, in connection with the fact that all money in both accounts originally belonged to Bullís; that it does not appear that Mrs. White ever had possession of the pass books evidencing these accounts; that she never withdrew money from either account and could not withdraw any in Bullis’ lifetime -without producing the pass books. I can find no donative intent by Bullis to give Mrs. White a then present interest in these two accounts. The form of these deposits indicates that if he had any donative intent toward her, it was confined to such balance as might remain to his credit at his death, which interest should not vest in her until that time, thus making his gift a testamentary disposition of funds without complying with the law of wills, and therefore void. I reach this conclusion upon the authority of the decisions above cited and the decision in Stevenson v. Earl, 65 N. J. Eq. 721. The amounts standing to the credit of the accounts in the Hoboken Trust Company and the Lincoln Trust Company will be decreed to belong to Bullis’ estate.

Taking up next the remaining accounts. The form of deposit used for these accounts is evidence of a gift to Mrs. White to take effect in prcesenti, and it is settled law in this state that under such forms the balance to the credit of the accounts belonged to Mrs. White on the death of Bullis (Morristown Trust Co. v. Capstick, supra; New Jersey Title, &c., Co. v. Archibald, 91 N. J. Eq. 82), unless it appears from the surrounding circumstances that he had no donative intent in naming her as joint owner with him.

First, it is contended that the fact that all moneys deposited in these accounts originally belonged to Bullis is a circumstance to be considered. But, under the forms of deposit which we are now considering, this fact is immaterial. New Jersey Title, &c., Co. v. Archibald, supra.

It is next contended that the provisions of Bullis’ will negative the idea of an absolute gift to Mrs. White of any interest in the seven accounts now in question. His will is dated December 9th, 1914, and by it he bequeathed legacies for a total of $19,600, which includes a bequest of $7,000 to Mrs. White, and he provided for distribution of his residuary estate. The inventory of his estate shows gross personalty of approximately $10,000 (exclusive of all bank accounts involved in this suit, which total approximately $45,000). Whether or not he left any undevised real property does not appear, but I shall assume he did not. It is argued that he would not have given Mrs. White a legacy of $7,000 had he intended her to have his bank accounts, and that he would not have provided for $19,600 in legacies from an estate of but $10,000. I consider this argument mere speculation, and since we have in writing the plain and unambiguous things he did, I am not willing to guess that he had something in mind other than what he said. In the absence of evidence to the contrary, he is presumed to have known the effect of the agreements of deposit entered into with Mrs. White and the banks. He had opened six of his nine accounts two months prior to the date of his will, and I have found that two of them, for a total of over $9,000, were opened in such form that they could not be paid to Mrs. White as his survivor, and he is presumed to have known that she would not receive the moneys in these two accounts. Why he opened two -more accounts less than a month after the date of his will and a third account about sixteen months after the date of his will (the three for a tptal of $17,000) in such form that he gave Mrs. White a present interest in them, with the right to receive the balances credited to them on his death, I do not know and I do not think that anyone can' speculate safely that he had an intention different from what his agreements with the banks said he had. He died more than nine years after the date of his will. I might guess that when he executed his will he had an estate (exclusive of the money in bank) ample to pay the legacies provided for in the will. In fact, less than a month after the date of his will, he opened two of the bank accounts nowr in question for a total of nearly $12,000, the money so deposited coming from some source other than the bank accounts involved in this suit. I might also guess that when he executed his will he hoped and expected to leave sufficient property applicable to the payment of legacies. I might also guess that after he had executed his will he decided to give his sister, Mrs. White, a greater interest in his estate than he had already provided by bank accounts and will, and therefore he opened three more bank accounts and made them payable to her, jointly with himself, with right of survivorship to her. But, as I have said, these matters of speculation cannot be used as factors in determining Bullís’ intention, and so I cannot use the provisions of his will as evidence that he had an intent with regard to the bank accounts contrary to the terms of his written agreements with the banks.

It is further contended that there being no delivery of the pass books to Mrs. 'White, the gift to her was not complete because she was unable to draw money from the accounts without possession of these books. One of the essentials of a complete gift inter vivos is that there must be a delivery of the gift to the donee, and in case of a chose in action, the delivery must be of such a nature as the subject-matter of the gift is most capable. Where the subject-matter is a certificate of stock, a bank account or other chose in action standing in joint names, delivery cannot be made to, and possession is usually not held by, both or all joint owners at the same time, and delivery to one must, in the nature of things, be a delivery to the other or others (Dunn v. Houghton, 51 Atl. Rep. 71; East Rutherford B. & L. v. McKenzie, 87 N. J. Eq. 375), and since in the present case only one of the joint owners could hold the pass books (unless they were kept in a box or some place to which both could have access), the donor was the natural one of the two to hold them. After all, the gift was not of the books but of the monej^s in the accounts, and the books were but the written record issued by the banks of the items of debit and credit to the accounts, and the provision that no withdrawals could be made without presenting the books was mainly for the protection of the banks when called on to make payments. Of course, a donor who desired to guard the accounts against unnecessary and improper withdrawals could take advantage of and have protection under such provision, but had the pass books come into Mrs. White’s possession in Bullís’ lifetime and had she used them to draw against the accounts, can it be doubted, on the facts here present, that she would have been entitled to hold the amount of her drafts as against Bullís? There is no evidence that the pass books were always in Bullís’ possession, and if it is to be assumed that they were, it is to be noted that for the last three years of Bullís’ life a safe deposit box in which they were found was rented in the joint names of Bullís and Mrs. White’s husband under terms by which both and the survivor had access, and that the three Commercial Trust Company pass books were out of Bullís’ possession as follows: Account No. 1813, June 25th, 1923, and September 27th, 1923; account No. 7236, January 16th, 1922, and June 8th, 1922, and account No. 9873, January 16th, 1922, because entries in the pass books of withdrawals on those dates show that they wore made on drafts signed by Mrs. White. The pass book on account No. 1813 of the Commercial Trust Company was also in Mrs. White’s constructive possession March 12th, 1916, when she and Bullís went to the bank and $3,500 was drawn out on draft signed by him and deposited in account No. 9873 of the same bank, opened in their joint names under the agreement signed by them on that day. The real question seems to me to be: Do the facts show that there was an intention on Bullís’ part to make a present gift of the accounts to Mrs. White, which the latter accepted by signing the deposit agreements ? By the agreements with the banks, under which the accounts were opened, Bullís delivered his property to the banks and procured from them a contract with and for the benefit of Mrs. White (as well as himself), and the banks became debtors to both of them. Thus, a complete, valid gift or trust was made, under which the banks contracted to pay to Mrs. White, and I do not consider that delivery of the pass books into her hands was necessary to complete the contracts, at least so far as her right of survivor-ship is concerned. Dunn v. Houghton, supra; New Jersey Title, &c., Co. v. Archibald, supra; Meriden Trust Co. v. Miller, 88 Gonn. 157; Scott v. Berkshire Bank, 140 Mass. 157; Alger v. North End Bank, 146 Mass. 418. Further, can it not be said that Bullís made delivery of the pass books to a third person for Mrs. White? If so, such a delivery would be sufficient, even if the books did hot come to Mrs. White’s hands until after his death. Hoboken Bank for Savings v. Schwoon, 62 N. J. Eq. 503. I have said that for the last three years of Bullís’ life it is assumed that the pass books were kept in a safe deposit box, to which Bullís and Mrs. White’s husband and the survivor of them were to have access. Mr. White had no interest in these’ bank accounts or in the pass books, and it seems to me that if Bullís kept the pass books evidencing accounts payable to Mrs. White alter his death, in a safe deposit box, to which Mr. White had access in Bullís’ lifetime and after his death, Bullís said to Mr. White, in effect: “I deliver these pass books to you to hold jointly with me. If you survive me, deliver them to your wife, to whom the balances to the credit of these accounts are payable upon my death.”

Finally, it is argued that retention of control of these accounts by Bullís, through possession of the pass books, shows that Mrs. White was to have no beneficial interest in the accounts until after Bullís’ death; hence, the gift is void as an attempted testamentary disposition of the accounts. There having been a donative intent by Bullís that the gifts should take effect forthwith, that Bullís reserved an interest therein for his life and intended that Mrs. White should not come into possession of her interest until his death, would not invalidate the gift as an attempted testamentary transaction contrary to the statute of wills. Green v. Tulane, 52 N. J. Eq. 169; Sibley v. Somers, 62 N. J. Eq. 595; Mullen v. Mullins, 98 N. J. Eq. 727. Further, the form of these deposits created the relation of debtor and creditor between the depositors and the banks, under which the banks contracted with Bullís and Mrs. White to pay to Mrs. White, should she survive Bullís, all moneys the banks owed on the accounts, so that Mrs. White is entitled to the moneys under her contractual relation with the banks. New Jersey Title, &c., Co. v. Archibald, supra.

The amounts standing to the credit of the accounts in the Hudson Trust Company, Commercial Trust Company (three accounts), Hoboken Bank for Savings and Provident Institution for Savings (two accounts) will be decreed to belong to the estate of Lettie A. White.  