Road in Upper Leacock Twp.

of said vacated portions, a stretch of new road should be laid out, beginning at stake No. 113, being eleven thousand three hundred feet from the beginning point in said road, thence extending in a northwesterly direction to a point seventeen feet west of stake No. 116, a distance of about two hundred and fifty feet, said ending point being north of coal shed on lands of Milton Bushong in the public road hereinbefore described as ending at Bushong's Mill on the Conestoga Creek. The prayer of the petitioners was, that the court should appoint viewers to view the above-mentioned public road and inquire into the propriety of widening the same, and that portions of said road might be vacated as prayed for, and in lieu of said vacated portions, a short distance of new road should be laid out.

In accordance with this petition, viewers were duly appointed, and on April 19, 1920, they presented their report to the court, in which they vacated the parts of the old road referred to, and laid out a small strip of road in lieu thereof. This report was duly confirmed nisi, and to it exceptions were filed for the Lutheran Church and John Ranck. These exceptions are to the effect that the court was without jurisdiction to appoint viewers, as the petition was for the laying out, vacating and widening of a road, and that the report of the viewers was without effect on that account.

In Loyalsock Township Road (No. 1), 26 Sup. 219, Rice, P. J., reviewing the action of the court below in dismissing exceptions to a report of viewers made under similar circumstances, said: "Their report shows that the viewers did four things, subject, of course, to the approval of the court: (a) They vacated a portion of the road at Miller's run; (b) they supplied its place; (c) they recommended that the road throughout its entire length be widened to fifty feet; (d) they assessed the damages. It is urged that, independently of the act of 1903, which it is claimed is unconstitutional, the road laws in force in Lycoming County do not authorize the accomplishment of these objects. through one and the same set of viewers. The proper course, say counsel, would have been (1) to petition to change and vacate the old road, as provided by the act of 1836; (2) for the persons damnified to petition the court for the appointment of viewers to assess their damages under section 7 of that act; (3) after such change of location to petition under the act of 1850 to widen the changed road; (4) to ask for the appointment of viewers, under section 7 of the act of 1836, to assess the damages for such widening. We do not concur in this view." He then discussed the whole proposition at great length, and concluded that one and the same set of viewers may vacate a portion of a township road, supply its place, widen the whole portion of the length, and assess the damages.

For these reasons we are of the opinion that the exceptions have no merit, and we therefore dismiss them.

Exceptions dismissed.

Court of Common Pleas of Lancaster County

Horace L. Skiles, Ex'r of Ella Doerr, dec'd, v. Peoples Trust Co., guardian of Leon Umble.

Gift-What constitutes-Certificate of deposit-Bank credit in name of donee-Declaration of trust.

The plaintiff's decedent paid a certain sum of money to a bank for which she obtained a certificate of deposit carrying interest, in the name of Leon Umble, her five-year-old minor son, whose father was dead, and also deposited a certain sum of money in the bank, starting a new account subject to check, in the name of "Leon Umble per Ella Doerr." She then placed the certificate and bank book in a box in the bank with instructions, in case of her death, to deliver it to the plaintiff, her executor. On her death the certificate and the bank account were claimed by her executor and also by the guardian of her son. Held, that the guardian was entitled to the certificate of deposit, which represented a valid gift inter vivos, but that the sum deposited subject to check was not a complete and valid gift and should go to the executor.

If the retention of the certificate by the decedent in her son's name was for her benefit and not his, the burden was on the plaintiff to show it.

In order to constitute a valid gift inter vivos there must be both an intention to make the gift then and there, and such actual or constructive delivery at the same time to the donee as divests the donor of all dominion over the subject and invests the donee therewith.

What is clearly intended as a gift but is imperfect as such, cannot be given effect by construing it as a declaration of trust.

Feigned issue. December Term, 1919, No. 81.

Charles W. Eaby and F. S. Groff, for plaintiff.

John A. Coyle, for defendant.

October 23, 1920. Opinion by HASSLER, J.

This case has been submitted to us for trial without a jury. It is an issue to ascertain which of the parties claiming them is entitled to a certificate of deposit, and a deposit of money in bank subject to check. Both have been paid into Court upon the application of the New Holland National Bank, against which an action has been brought by one of the parties. The facts are not in dispute, and are as follows:

1. On September 24, 1918, Ella Doerr, plaintiff's testatrix, paid to the New Holland National Bank sixteen hundred and thirteen dollars and forty-one cents ($1613.41), and obtained a certificate of deposit, numbered 6211, for that amount in the name of Leon Umble, payable to his order, with interest at the rate of three per cent.

2. On September 30, 1918, Ella Doerr deposited, subject to check, three hundred and sixty dollars ($360.00) in the New Holland National Bank, which sum was credited to "Leon Umble per Ella Doerr," and so appears on the book given by the bank to her.

3. Leon Umble is a minor son of Ella Doerr, born August 13, 1913, so that he was about five years of age when the money was deposited in the bank. His father was dead at that time, and the Peoples Trust Company of Lancaster, Pa., was his duly appointed guardian.

VOL. XXXVII, No. 53

Horace L. Skiles, Ex'r of Ella Doerr, dec'd, v. Peoples Trust Co., guardian of Leon Umble.

4. Ella Doerr died April 14, 1919, leaving a will in which Horace L. Skiles is named executor. Letters testamentary were granted to him on April 24, 1919.

5. Ella Doerr placed the certificate of deposit, above referred to, and the bank book, showing the deposit above referred to, in a metallic box which she had in the New Holland National Bank, with instructions that, in case of her death, it should be delivered to Horace L. Skiles, her executor.

6. The said box was delivered to Horace L. Skiles when she died, and upon opening it, he found that it contained, among other things, the said certificate of deposit and bank book.

7. None of the money used in obtaining the certificate of deposit nor in making the deposit in the New Holland National Bank in the name of "Leon Umble per Ella Doerr" was the property of said Leon Umble, but belonged at that time to Ella Doerr.

The legal question involved is, whether the acts of Ella Doerr in obtaining the certificate of deposit in her son's name and placing and keeping it in her bank box, and in depositing the money in the bank, as she did, in the name of "Leon Umble per Ella Doerr," and retaining the bank book in the same place, constituted valid gifts inter vivos of the same to her minor son, Leon Umble.

In order to constitute a valid gift inter vivos two essential elements must combine: an intention to make the gift then and there, and such an actual or constructive delivery at the same time to the donee as divests the donor of all dominion over the subject, and invests the donee therewith: Reese v. The Trust Co., 218 Pa. 150; Ashman's Estate, 223 Pa. 543.

There can be no doubt that Ella Doerr intended that her son Leon Umble should have the certificate of deposit and the money deposited in bank, but there is a question whether she made an actual or constructive delivery of them, or either of them, that divested her of all dominion over them, or either of them, and vested her son with it.

We will first decide whether there was such a delivery of the certificate of deposit or the money used to obtain it.

In Wheeler v. Kidder, 105 Pa. 270, the facts are as follows: In 1864 a father bought a farm with his own money and had the title put in the name of his six-year-old daughter, who did not know of the deed until fifteen years afterwards. It was never delivered to her, but was retained by the father. He subsequently made investments which proved disastrous, and the farm was sold as his property by his creditors. In an action of ejectment by the daughter it was decided that there was a valid gift inter vivos of the money used to purchase the farm, and a constructive delivery of it in paying it to the grantor of the farm, as that act divested the father of all dominion over it, and the title in the deed invested the daughter with it. In delivering the opinion of the Court, Justice Green said: "But here everything was done which was necessary to be done in order to vest the fee-simple

Horace L. Skiles, Ex'r of Ella Doerr, dec'd, v. Peoples Trust Co., guardian

of Leon Umble.

title of the grantor in the daughter. Surely the father could not divest the title of the daughter by any act of his. His gift was of the money which paid for the land, and when it was paid the gift was consummated and irrevocable. How, then, could he become clothed with his daughter's fee-simple estate? Not by way of resulting trust, because that would not arise upon a mere presumption, as in the case of a stranger. Not by adverse possession, because the possession was not adverse, but in accordance with the title. Not upon the theory of an unconsummated gift, because the father never owned the land, and never assumed to convey it, and there was no such thing as an incomplete conveyance in the case. His gift was of money, and that was completed."

In Roberts's Appeal, 85 Pa. 84, an uncle transferred, on the books of a corporation, two thousand shares of the Pennsylvania Company, to a minor niece of his wife, who lived with him as a member of his family. He retained the certificate, and it was found among his papers after his death. The niece did not see the certificate and had no knowledge of the transfer until after her uncle's death. It was held that the facts constituted a valid gift of the stock to the niece. In the opinion of Judge Thayer, on which the case was affirmed, it is said: “But here the gift is complete by the delivery of the thing itself, for transferring the shares to her upon the books of the company is putting her in complete possession of the thing assigned, and clothing her with the complete legal title. It stands in the place of a delivery. Such an act performs precisely the office which an actual delivery would perform if it were a chattel. It is as complete a delivery as the nature of the thing will admit of. There can be no clearer evidence of a design to part with the right of property in favor of another than an absolute transfer of the legal title to her for her own use. Retaining in his possession the certificates which are in her name, and which he could not use without her consent, cannot undo or qualify the decisive ownership with which he had invested her by the actual transfer to her on the books of the company. The best evidence of her ownership is the transfer on the books of the company. The certificates were but secondary evidence of her ownership, and only useful for purposes of transfer. They were nothing more than the official declaration by the company of what already appeared on their books. . . . He could not have used the certificates, nor could any one have used them except Miss Foster."

In Langdon v. Allen, 1 W. N. 395, a father took two notes of $1500.00 each for money due him in the names of his two daughters, one for each of them. He put them in an envelope addressed to one of the daughters, and kept them among his papers, where they were found after his death. It was held, in an action on one of the notes, that this was a valid gift of a note inter vivos to each of the daughters. In the opinion of the Supreme Court it is said: "The note was a perfect instrument. It evidenced a debt of Thomas F. Abott, and was perfected by delivery. So far as Thomas was concerned it was evidence

Horace L. Skiles, Ex'r of Ella Doerr, dec'd, v. Peoples Trust Co., guardian of Leon Umble.

of a cause of action in the name of Sarah A. Allen, against him for the sum mentioned in the note, and the action could be maintained against him in her name alone, or in that of her endorsee. Her title, therefore, did not depend upon delivery by her father, but upon the terms of the note itself, and the delivery of the drawer, Thomas F. Abbott, from whom the cause of action arises. It was, therefore, necessary to show that George Abbott, the father, did not take the note for the benefit of the daughter, but for his own benefit. The implication from the form of the note, and the relationship of father and daughter was adverse to a trust for his use, and throws the burden upon him of showing clearly that such was not the case. We cannot say the evidence was sufficient to overthrow the implication of law and the evidence of intention to make a gift to her of the money."

In all of these cases the gifts were held valid because by their acts the donors divested themselves of dominion over the subjects, and invested the donees therewith, which is what Ella Doerr did in having the certificate of deposit made in the name of Leon Umble, her son. This certificate of deposit was a perfect instrument. It evidenced a debt of the New Holland National Bank to Leon Umble which was perfected by its delivery by the bank to Ella Doerr. No one but Leon Umble, or his guardian, could maintain an action on the certificate against the bank to recover the money called for in it. His title, therefore, did not depend upon delivery by his mother to him, but by the terms of the instrument itself and the delivery of it to her by the maker of it, the New Holland National Bank, from which the cause of action arises. The subject of the gift to Leon Umble was the money used to obtain the certificate of deposit, and not the certificate itself. The delivery was complete when the money was paid to the bank, as that divested Ella Doerr of all dominion over it, and invested Leon Umble with it when the certificate was obtained in his name. If the retention of the certificate by Ella Doerr in her son's name was for her benefit and not for his, the burden was on her executor to show it, as the implication arising from the form of the certificate and the relationship of the parties, mother and son, shows that such was not her intention. No evidence was offered to show this, and we must therefore conclude that a valid gift inter vivos of the money paid for the certificate of deposit was made.

The case is entirely different as to the money deposited in the bank in the name of "Leon Umble, per Ella Doerr." She did not divest herself of all dominion over that money in depositing it in that way. It could have been drawn out by a check signed by her. She retained it partly in her name for the purpose of showing that she had not divested herself of all dominion over it. She showed an intention of giving it to him, but not at that time, nor by her act of so depositing it alone. Something more was to be done before it was to be a complete gift to him. As she did not divest herself of all dominion of it, and invest him with it, there was no actual or constructive delivery of it, and there was no complete or valid gift inter vivos of it to him.