#### Gottfried Schneider, Appellant, *v.*Anna M. Schneider, Respondent.

(No. 1.)

First Department,

December 20, 1907.

Gift inter vivos — savings bank deposit — facts not establishing gift by ■ husband to Wife — Statute of Frauds— ante-nuptial agreement.

To constitute a gift *inter vivos*there must be on the part of the donor an intent to give and a delivery of the thing given to or for the donee in pursuance of such intent and acceptance on the part of the donee.

One who claims a gift *inter vivos*of a portion of a savings bank deposit, the money being originally the exclusive property of the alleged donor, is under the bur*775den of establishing by a preponderance of evidence the essentials of a complete gift *inprcesenti.*

The mere fact that a husband having a deposit of his own money in a bank changes the account so as to stand in the j oint names of himself and wife “ pay to either or the survivor of either” does not óf itself establish a gift *inter vivos,*for no exclusive control was given to the wife, but the husband retained the right to use the whole fund for his own purposes.

Evidence examined and *held*to be insufficient to establish a gift by a husband to his wife of one-half of a savings bank deposit owned by him.

An ante-nuptial agreement to give a future wife a portion of a savings bank deposit in consideration of marriage is void if not in writing.

When a wife, claiming that her husband gave her a portion of a savings bank deposit, testifies that she did not marry him because of an alleged parol ante-nuptial agreement to make the gift, said agreement does not strengthen her .testimony as to transactions after marriage offered to prove the gift.

Appeal by the plaintiff, Gottfried Schneider, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Yew York on the 29th day of June, 1907, upon the decision of the court rendered after a trial at the Yew York Special Term in an action of interpleader upon a counterclaim.

*Charles P. Pollock,*for the appellant.

*William John Ba/rr*of counsel *[Penry W. Pollock,*with him on the brief], for the respondent.

Clarke, J.:

This action was brought to recover a savings bank deposit in the Citizens’ Savings Bank. The bank interpleaded the defendant and holds the money subject' to the final determination of the action. The complaint alléges that plaintiff is the owner of the deposit and demands judgment for the recovery thereof. The answer denies that plaintiff, is the owner of the deposit, and sets forth a counterclaim that the defendant became the owner of one-half of said fund by a gift thereof from plaintiff pursuant to an ante-nuptial agreement, and demands judgment for one-half of said deposit. The reply denies the gift or the ante-nuptial promise and pleads the Statute of Frauds as a bar thereof. .

Plaintiff is a machinist. The defendant is his second wife whom he married in Yovember,' 1905. Prior to said marriage and during, the life of his first wife he had on deposit in the Citizens’ Savings *776Bank about $2,800, and in the German Savings Bank about $2,900. These sums represented the savings of twenty years. During the lifetime Of his first wife, who died April 13, 1904, these *accounts'*had. stood in the names of the plaintiff and his first wife, as joint accounts, and, at her decease came to the plaintiff as survivor, and it is conceded that thereafter, and up to the time of the transaction hereafter to be considered, the account here under consideration had been .deposited by and belonged exclusively to the plaintiff. •

On January 11, 1906, about two months after the marriage of the parties, plaintiff • and defendant went to the bank and had his account, which then stood in his own name and that of his former, wife, transferred’ to a new book account, ■which new account was opened in the name of “ Gottfried or Anna M. Schneider, pay to either or the survivor of either.” .

The plaintiff testified that before going to the bank: *“*I told her we were going down to the bank and I ard putting her name in the bank book so that in ease l am sick or dead, or anything happen to me,' then she can draw the money without any trouble.”- That in the presence of his wife he said to the cashier: “ I want to have my' wife’s name on this. * * * I want her name in the book so that .'in case .anything happen to me or sickness ..or accident, or if I die, then she could draw the money without any trouble. That was all the talk we had in the -bank.”. - The bank book was then taken to their home and put in a locked tin box belonging 'to the plaintiff, which had theretofore been used, and continued to be used, as a depository for this and .other bank books, plaintiff’s bush ness papers, the will of his first wife, and the like things. The key of said box was on the dresser, in their apartment until the plaintiff took personal possession of it and put it in his pocket a few days prior to July 20, 1906. On said day the defendant, for some reason not disclosed in the record, left him. They have not since said date lived together. ' On the 19th of July, 1906, she caused the following notice to be served upon the bank: “ I beg to notify you that account in your bank, represented by bank book Ho. 291,341, in which there is a' balance of $2,800.86 and interest, which account stands in the name of my husband, Gottfried Schneider and myself, Anna M. Schneider, is not tó be drawn cm by my husband without my joining in -the withdrawal of any sum whatsoever.” Between *777the 11th of January, 1906, when the transfer of the account was made, and the twentieth day of July, when she left the plaintiff, the defendant had not drawn any money from the bank upon this account.

Upon the trial counsel for the defendant stated : “We realize that under the decisions the form of this deposit on the face of the book would indicate survivorship, but we rest upon an oral agreement to execute a gift, that that gift was executed and was represented to be executed, and then that the transfer was made in the bank; but we limit our demand to half, because that is all that was promised—that the plaintiff made a gift of one-half of his interest in these moneys to the defendant on that day, though lie adopted a form which would warrant her in taking the whole of them if she had drawn them out at the same time. It is our contention that pursuant to an earlier promise in the days of their courtship he gave her half of these moneys.”

The defendant testified in substance that prior to the marriage the plaintiff had.told her how much money he had, and he had said to her, “Yon know this is going to be half and half; half to yon and half to me. This belongs to you, half of this money,” and, that at the bank, after the new book was handed out by the officer of the bank, the plaintiff said: “How, I fixed it up. Half of that belongs to you. This belongs to you just as much as to me.” Upon cross-examination she was asked whether she promised to marry him just because he spoke to her about this money, and she answered: “ Ho; I did not promise to marry him because he spoke to me about this money; that was not my reason for promising to marry him. I thought I was getting a good husband; that was my only reason. I had some affection for him at that time. * * * I had as much affection for Mr. Schneider as I have for any man in this world. I did not marry him because he spoke to me about the money.” She also testified that when they went down to the bank in January he said: “Anna, I promised you that when I went in it: I don’t want to lose a day’s time. We will go down and have that money put in your name. I promised you that before, and you shall have it, half and half.” She testified that she knew the account was made out in his name as well as her own; that he could draw all the money at any time, and that she never asked him to put half of the money *778in her separate name. The plaintiff denied that he had ever' told his wife that he would give her any part of the money, or that he had ever, said, “Now,' half of the money is yours.”

The determination of this controversy depends upon the question whether the facts sustain a completed gift *in jprcesenti inter vivos*by the plaintiff to the defendant of' one-half of his own money represented by this savings bank account. It being conceded that the.-whole amount in bank was originally the exclusive property of the plaintiff, and the defendant having alleged by way of counterclaim a gift of one-half thereof to her, the burden was cast upon her of establishing by a preponderance of evidence all the essentials of a completed gift *in prmsenti.*

The elements necessary to constitute a valid gift are well understood and are not the subject of dispute. There must be on the part of the donor an intent to give and a delivery of the thing given to or for the donee, in pursuance of such intent, and on the part of the donee acceptance. *(Beaver*v. *Beaver,*117 N. *Y.*421.)

The mere fact of the opening, of the account in their joint names, “pay to either or the survivor of either,” did not in and of itself establish any such gift. Exclusive control was not given to the defendant by the manner of opening this account, over one-half thereof, or any part thereof, for the plaintiff thereunder retained the right to draw every dollar of the fund and use it for his own purposes.

In *Matter of Bolin*(136 N. Y. 177) Judge Gray said : “That the moneys were deposited to the account of Julia Oody or daughter Bridget Bolin,’ is not a fact from which any inference of a transfer or . of a gift arises. In the absence of other evidence the transaction simply evidenced á purpose of the depositor of the moneys that they should be drawn out by either of the persons named. The only presumption would be that the depositor so arranged for the purposes of convenience.”

The case of *Slee*v. *Kings County Savings Institution*(78 App. Div. 534) was an action brought to recover a sum of money deposited with a savings bank and claimed by. both the plaintiff and his wife, the money having originally belonged to the plaintiff adeposited in .their joint names, “ either to draw.” In that case the bank book was placed by the husband in a tin box, for which he *779for a time kept the two keys, but finally gave one to his wife in order to enable her to pay bills. He also made out and signed a written statement in which he promised that he would lay no claim to the money, and asserted that it belonged exclusively to her, but he never delivered the statement. She found it and refused to return it on demand. The court sustained a judgment for the husband, stating that the facts did “not justify the claim, On the appellant’s part, of a consummated gift. The deposit for the purpose alleged by the plaintiff, with the retention by him of the custody of the bank book, did not operate to transfer title to the money, and the subsequent taking of the bank book by the appellant could not accomplish such a transfer.”

In *Wood*v. *Zornstorff*(59 App. Div. 538) the court said of a joint account: “It may have been placed in the names of the two either to assure title in the survivor or as a matter of convenience for this father in his advanced years to enable his daughter to transact the business for him.” This court said in *Bowron*v. *De Selding*(105 App. Div. 500): “ There 'is no doubt about the law as to what is necessary to constitute a valid gift *inter vivos.*• It is a delivery by the donor of the subject of the gift'with intent to at once vest title to the thing given in the donee.” It has been held that whoever alleges a gift must establish it by satisfactory proof. Where the matter is left in doubt, upon the whole case, the cafee must fail. *(Matter of Rogers,*10 App. Div. 593; *Bray*v. *O’Rourke,*89 id. 400.)

“ An absolute gift requires a renunciation by the donor and an acquisition by the donee of all interest in and title to the subject of the gift.” *(Curry*v. *Powers,*70 N. Y. 212.)

It follows that the manner in which the account was opened upon the face thereof, furnishes no support for the conclusion of a completed gift *inter vivos*of one-half of the account. Exclusive control thereof was not lost by the plaintiff, ñor acquired by the defendant, and the inference from the account, pointed out by the cases, is entirely borne out by the testimony of the plaintiff that it was so opened to permit the defendant to draw from said account in case of necessity or sickness, and to vest her with the title to the same upon plaintiff’s death. Her own claim finds no support in the notice which she served upon the bank, for therein she asserted title to the whole account in contradiction to her present position that she was *780entitled to only one-half. Nor is it supported by her conduct, because, if her testimony is true that her husband had promised her one-half the amount, there would have been no difficulty when the transfer of the account was made to have had an account opened in her own name for one-half thereof, which would have furnished conclusive, proof of a gift thereof to her if it had been coupled with a deliveiy of the bank book and exclusive dominion thereof by her.

We do not think that respondent’s testimony as to her pre-nuptial talk with the plaintiff aids her. She distinctly repudiated the suggestion that she entered into the marriage upon the inducement of any such promise. Nor does she now stand upon the enforcement of a contract made in consideration of marriage, for such contract is required to be -in writing by the Statute'of Frauds,* but. she offers the evidence as bearing upon the intent with which the account was opened in support of her claim of a completed gift.

Upon the whole case, we are satisfied that the evidence does not sustain the judgment and it must, therefore, he reversed and a new trial ordered, with .costs to the appellant to abide the event.

Patteeson, "P. J., Ingeaham, McLaughlin and Houghton, JJ., concurred.

Judgmeñt reversed, new trial ordered, costs to appellant to abide event.

*

 See Pers. Prop. Law (Laws of 1897, chap. 417), § 21, subd. 3.— [Rep.