tending to make a present gift of it to B, this is a sufficient delivery. A delivery of the pass-book to the donee is sufficient delivery, and a delivery of the passbook with an order for the full amount of a deposit in a savings bank is generally held to be a valid gift, when coupled with the intent to make the gift, even though the donor dies before presentation of the order. So it has been held that if a depositor surrenders his book to the bank, asks the bank to transfer the account on its books to another, and takes a new book in the donee's name, this, coupled with the intent that it should vest in the donee, would in some states be held a valid gift; in others perhaps a delivery of the book to the donee would be required; while in Pennsylvania it is held that the mere delivery of a pass-book will not work a transfer; being mere evidence of an account, the delivery is not a delivery of the money. And in any event if the donor did not deliver the book because he did not mean to make it a gift during his lifetime there would be no valid gift. If the donor gives the deposit book and an order to the donee and the donee notifies the bank, this would be a valid gift in those states where the delivery of the book is construed as a delivery of the money represented. In the case of savings banks the by-laws of the bank should be complied with wherever possible, but if a gift is otherwise established, the mere fact that the assignment has not been made as required by the bylaws will not in itself defeat the gift. The omission of the assignment, when taken with other facts and circumstances, might be held to show the intention of the alleged donor. Such rules are for the protection of the bank and its depositors against fraud and mistakes, but cannot defeat the rights of parties.

190. Check. As we noted before, death is held to revoke all unaccepted checks. And cases have held that

the donee of a check must have it turned into money before the donor's death or transfer it to a bona fide holder for value. But where a valid gift otherwise established has been completed during the life of the donor, his death before transfer will not invalidate the gift merely because one of the evidences of the gift is a check. If a check delivered as a gift has been transferred by the donee to a bona fide holder, the estate would be liable on the check, and the bank could not be held for paying same without notice.

191. What the Courts Have Held.—In a recent case in New York a depositor in a savings bank delivered her pass-book to the donee, with an order upon the bank to pay the donee "on producing my deposit book No.-," the full balance. It was held that this was a sufficient delivery to constitute a valid gift, though the depositor died before the book and order were presented. The bank having paid upon presentation of the book and order, it could not be held by the administrator of the deceased depositor. McGuire v. Murphy, 94 N. Y. S., 1005. It will be noted that there is not absolute harmony in the decisions in the different states. In some cases savings bank deposits are treated differently, but this appears to be because the bank had paid upon an order presented with the book, and the bank was entitled, under its by-laws, to a discharge upon such payment. In other cases the distinction between savings bank accounts and accounts in other banks is not drawn.

In Virginia it has been held that if A, being indebted to his son, B, makes a deposit in bank in B's name, the law will presume, in the absence of clear evidence to the contrary, that the deposit was made in payment of the debt to B, and not as a gift. If the deposit could be regarded as a gift to B, B would have a claim on the debt against the estate. It has also been held that if A owes

B and makes a deposit in B's account this is not a payment unless B consents, one case holding that where A deposits for B the bank is merely the agent of A to pay B.

If A deposits money in bank and has an entry made in the book to the effect that the money is to be paid to X upon her death, this is not a gift, as the owner did not part with the control during her lifetime. Jones v. Crisp, 71 Atlantic, 515. Merely adding the name of another person whose signature the bank shall pay on does not constitute a gift. Schipper v. Kempkes, (N. J.) 67 Atlantic, 1042. In a Connecticut case, where A intended to give B a deposit in bank, but, having lost her book, drew an order for the money as required by the by-laws, and in delivering the order to B said it was subject to her use during her lifetime, the court held that there was a sufficient transfer of ownership, notwithstanding the right of the "use" of the money during her lifetime. The court found that she was to have the profit on the money, but the gift was complete. It was B's, subject only to her right to have the interest. Candee v. Conn. Savings Bank, 71 Atl., 551.

A delivery of a certificate of deposit with the intention that the donee should have title thereto, is a valid gift, though the one to whom delivered for the donee retains possession until after donor's death, the donor having intended delivery. Nelson v. Olson (Minn.), 121 N. W., 609. But a certificate procured by A in B's name, and never delivered, may be returned by A and the money recovered. In Basket v. Hassall, 107 U. S., 602, the United States Supreme Court held that where A delivered to B a certificate of deposit endorsed by the payee to B, but to be paid "not until my death," this was not a valid gift causa mortis because, in stating that it was not to be paid until after his death the donor did not surrender control over the money or deliver it to the donee. In a gift causa mortis, while the property reverts to the

donor in case he recovers, yet there must be complete surrender of ownership, power or control over the thing in so far as, and to the extent that, it is possible for the donor to relinquish his present ownership. Here the donor stated that it was not to be paid until after his death. A case which seems in conflict with this, but which really is not, is the case of Phinney v. State, 36 Wash., 236. A, in a dying condition, desired to give a friend who had remained with him in his sickness his deposit in bank, in another state. The only possible way was by ordering the bank to pay to the donee, B. He did not know his exact balance, but thought it was more than $4,000. He had the doctor draw a check payable to B, and delivered same to B, saying, “If I don't get over this I want Frank to get my money." He was to get the money back if he lived, but there was no string tied to the gift. B could go at once and get the money. But he could make immediate collection only by mail. A also wrote the bank, sending his book to have it balanced. The book reached the bank, but the letter with the check was delayed in reaching the bank until after the bank had been notified of A's death. A had no heirs, no next of kin, no creditors, and the state would be entitled to the money if the gift were not held valid. The court held that, under all the circumstances, this was a valid gift causa mortis. A intended that B should receive the money; the intention was clearly proved; there were no adverse claimants except one who claimed the money because no other did, and A had done everything possible to transfer the money to B in his lifetime. It is true that this is contrary to the law that death revokes a check. In Pullen v. Placer County Bank, 138 Cal., 169, the donor gave the donee a check, requesting that it be not presented until after his death. The Code in that state provides that a gift to be

valid must be accompanied by a delivery of the thing if it is capable of delivery. And besides, the donor requested that the check be not presented until his death, so there was no delivery. Where the donor retains control of the thing it is generally held that there is no gift. In the Washington case the control was surrendered as completely as the circumstances of the case would permit.

192. With these conflicting cases you will doubtless still wonder what the law is, but a careful study of the main principles that there must be an intent and a delivery will help to make the reconcilement less difficult. The relationship of the parties, the age, physical and mental condition of the donor, the circumstances under which the gift is made and the conduct evincing the donor's intent should all be taken into consideration. While the court will seek to protect rightful owners against fraud, in the absence of fraud it will endeavor to carry out the intention of the donor where that intent can be proved.

192a. Gift to Save Administration on Estate. If a person desires his property, upon his death, to go to one other than those to whom the law would give it, he can provide therefor by will. If he wishes to "fix" his property so that a will and administration can be prevented, the only way he can do it is by giving the property during his lifetime. He can give it to another, to be owned jointly with himself. Kelly v. Beers (N. Y.), 86 N. E., 980. But if there is any string tied to it, so that he can revoke it during his lifetime, it is not a gift. Where it can be done, the bank, the donee and everybody interested should be made fully aware of the gift and a complete understanding had, that the title to the property is vested in the donee, absolutely, to be owned jointly by him with the donor, and that the survivor shall take all not withdrawn on the death of either. As such gifts,