CHAPTER IX.

GIFTS OF DEPOSITS.

181. There is much seeming and a good deal of real conflict in the decisions of the courts of the different states concerning gifts and gifts in trust of bank deposits, checks, etc., Therefore, only the general principles underlying the law of gifts will be here stated.

We have seen that one in whose name a deposit stands is presumed to be the owner until title in another is shown; but when ownership is proved the true owner is entitled to the money and to him the bank will be liable. So long as the bank has no notice, and in some instances no reason to believe, that the money belongs to another, it can pay to the one who, between the bank and himself, is the depositor and owner. But when there is a disputed ownership the bank must be careful to pay to the right one. When gifts are made, therefore, while the bank is made no better nor worse by the mere giving of the thing, it is frequently put into a position where it does not know just what to do. In most such cases the better thing to do is to refuse to pay to any claimant without the consent of all, and if suit is brought by one, to pay the money into court and let the court determine the rights of the parties, taking a bond of indemnity from the plaintiff before paying over the money. Or it may pay to the one appearing to have title to the money upon his giving bond. If the bank wishes to have the question of ownership determined, and neither party takes the step to have the question settled, the bank may be permitted to bring a bill of inter-pleader, asking

the court that these parties be brought in and have an adjudication of their rights. In such case the bank will not suffer any loss by way of expense, etc. Whether such bill can be brought is a question of local practice. The bank could not ask the parties to interplead if it had any interest in the money itself; but where upon the death of a depositor there is money in bank, the ownership of which the bank wishes determined, the right may be given. Where the parties can agree upon a settlement the bank can pay under such an agreement, but should always require a written release from all parties concerned, and as an agreement to do something which is contrary to law could not bind one, great care should be taken.

182. Gifts.-Upon the death of a person having money in bank claims are apt to be made by various persons that the decedent made a gift of the deposit. If a valid gift can be proved, the donee is entitled to it. There may be several claiming as a gift. At the same time the administrator or executor might claim it. The bank must pay the rightful owner or it will be called upon to pay again.

A gift is, generally speaking, a voluntary, gratuitous transfer of the title and possession of personal property by one to another. Gifts are of two kinds; gifts inter vivos and gifts causa mortis.

183. Gifts Inter Vivos.-A gift inter vivos is a gift made to take effect during the lifetime of the giver (called the donor). To be valid, there must be an intent on the part of the donor to vest the title in the donee (the one to whom given) and a delivery of the thing to the donee, or to another for him, though the delivery need not necessarily be made at the same time the intention is expressed, so long as there be a delivery to complete it. There must also be an acceptance by the donee, though

this is usually implied from the conduct of the donee, and in some states it is held that the donee need not even know of the gift.

The intent must be clearly shown as a gift will not be presumed. There must be something more than mere words. There must be a delivery of the thing. If it is not capable of actual delivery at the time, there must be such conduct on the part of the donor as can be construed as a clear intention to part with the dominion over the property. The delivery of a written instrument which is evidence of property, when executed by the donor, would be sufficient delivery. Contract rights can be delivered only by a delivery of the written evidences of those rights. And where circumstances make a manual delivery impossible, as where one is ill and wishes to deliver a box, trunk, etc., which he cannot reach, or which is too large, a symbolical delivery, as the delivery of a key, will suffice. There must be some act manifesting a clear intent on the part of the donor to surrender dominion over the thing. The health, conditions, surroundings, and all the circumstances must be considered in determining whether the donor parted with the ownership. Where the donee is already in possession, it is not necessary that there be a delivery by him to the donor and a redelivery by the donor to the donee. A clear indication of an intent to vest the title in the donee will suffice.

183a. Where delivery is made to an agent for delivery to the donee the question sometimes arises as to whether the one to whom the article was delivered was agent for the donor or the donee. If the delivery is made to the agent of the donor, until there has been a delivery by the agent to the donee the gift can be revoked, or recalled, and the death of the donor before delivery by the agent would operate as a revocation

of the agency, causing the gift to be invalid. Where

the delivery is made to an agent or trustee of the donee (and in some cases it is held that delivery to a third person is delivery to a trustee of the donee) the delivery is complete. A gift once perfected cannot be revoked, and no subsequent possession by the donor can give him title merely by virtue of his having been the original

owner.

184. Gifts to Take Effect in Future.-A gift to take effect in the future, or upon a contingency, is generally held to be of no effect as a gift inter vivos; though where a gift is absolute, the donor parting with the ownership as a present gift, the fact that the donor is entitled to use the thing, or that the donee is to perform some act in regard thereto, does not invalidate the gift otherwise perfected. Such is a gift where A gives to B a deposit in bank, but with the understanding that A is to have the interest during his life, provided there is a surrender of ownership. If A has the right to withdraw any of the money there is no gift. A gift which is not to take effect until the donor's death is a testamentary disposition of property, and unless it is made in conformity with the law of wills, or other testamentary law, is invalid.

185. Donatio Causa Mortis.-A donatio causa mortis is a gift made in contemplation of death, revokable at any time before death and taking effect absolutely only in case the decease of the donor results from causes which led him to believe death was impending when he made the gift. As in a gift inter vivos, there must be an intention to give and a delivery of the thing, actual, constructive, or symbolical, showing a complete surrender of dominion over the thing; but the title in the donee is subject to being divested and reverting to the donor if death does not ensue as expected. Where property is given by will the thing is not delivered during the life

of the donor. Both a will and a gift causa mortis can be revoked at any time before the donor's death, but in a gift causa mortis there must be a complete surrender of ownership so far as such surrender is possible, during the life of the donor.

186. Almost any personal property can be the subject of a gift, but the gifts with which a banker is concerned and the phases of the law of gifts which are apt to arise in his business we desire more particularly to note. Just now, therefore, we are interested in gifts of deposits in bank, bank checks, etc.

187. The law of the place where a gift is made determines its validity.

188. Gifts can be made of funds on deposit in bank, whether represented by pass-books or certificates of deposit. Tucker v. Tucker (Iowa), 116 N. W., 119.

189. What Constitutes.-Where a desire to make a gift of a deposit is accompanied by such acts as the donor believes a complete transfer of the power and dominion over the fund, even though the money has not been transferred on the books of the bank, the intent to give, coupled with the complete surrender of the right to control the money, constitutes a valid gift. A intended to give to B money on deposit in A's name. A went with B to the bank and told the cashier of her desire to give B the money. The cashier advised A that her wishes could be carried out by giving B a power of attorney to draw out the money in A's name. This was done, and B withdrew part of the money. Creditors of A then sought to attach the balance standing in A's name, but it was held that, under all the circumstances, there was a sufficient transfer of dominion over the property, coupled with the intent to make the gift, to constitute a valid gift. Murphy v. Bordwell, 89 Minn., 54.

If A delivers money to a bank as a deposit for B, in