N. Y. SURROGATE’S COURT.

#### In the Matter of the Final Accounting of Catharine Ward, administratrix of Richard Ward, deceased.

*Decided June*5, 1876.

Richard Ward made deposits, in his lifetime, in a savings bank in the city of New York in the name of “Richard or Kate Ward.” He afterward went to Cuba, retaining the bank book in his own possession and custody, where he died. Subsequently the bank book, with other ■ property, was sent to New York, and letters of administration were applied for and obtained by his widow, who then withdrew the deposit and claimed the fund as her own.

*Held,*that according to the general line of authorities, the deposit of money in the bank in the name of Richard or Kate Ward was not intended as a gift to the wife *(judge*Peckham’s *opinion in Sandford*agt. *Sandford,*45 *N. Y. R.,*720, *not followed, as it seems to run counter to all settled notions of the laio in respect to such gifts).*

*Held,*also, that in the absence of any evidence of a gift, the moneys deposited belonged to the intestate’s estate, and were subject to distribution to the next of kin.

Delano C. Calvin, *Surrogate.*

*Daniel T.*Robertson, proctor for claimants.

The deposit in the names of “Richard or 'Kate Ward” defeated any claim of the widow to take the fund by survivorship *(Brown*agt. Brown, 23 *Barb.,*569). The fact of a subsequent gift of the fund having been made must appear affirmatively, and in the entire absence of such proof the moneys must be adjudged to belong to the estate *(Jennings*agt. *Davis,*31 *Conn.,*138; 2 *Swanst,*92; *Williams on Exrs.,*715; *Mews*agt. *Mews,*15 *Beav.,*529 ; *Brown*agt. *Brown,*23 *Barb.,**317569; *Bedell*agt. *Caril,*33 *N. Y.,*581; *Shuttleworth*agt. *Winter,*55 *N. Y.,*629).

*Man & Parsons,*proctors for administratrix.

The deposit was in the name of both husband and wife, and operated as a gift in favor of the survivor *(Brown*agt. *Brown,*23 *Barb.,*569; *Sandford*agt. *Sandford,*45 *N. Y.,*723).

*By the*Surrogate.

Objection is made to the final account rendered by the administratrix, on the ground that the account does not embrace a deposit in the Excelsior Savings Bank of this city, amounting to $3,045, or household furniture and chattels worth $800, or a diamond cluster pin worth seventy dollars.

The proof shows substantially that the deceased, in his lifetime, deposited the money in question in said, bank, and had the entry made in his bank pass-book “ Richard or Kate Wardthat the deceased drew from said account on several occasions, but that his wife Kate never drew any until after she came into possession of the bank book after the intestate’s decease.

It also appears that Mrs. .Ward had no means or separate estate.

It also appears that the intestate left considerable furniture of the value of $800, which was purchased by his wife with money furnished by her husband, and which is not accounted for.

It is also claimed that deceased left a diamond pin, but tlie proof as to the value is too indefinite to justify any finding on that subject.

Objection is also made to the charge for professional services alleged to have been paid to Mr. McGean as too high. Upon this subject, while from his cross-examination it is very difficult to see how such a charge as $950 could be reasonable, yet he has testified that it was reasonable, and there is no evidence to contradict it, I feel constrained to allow the charge on that proof.

*318In respect to the furniture, the proof shows that the intestate gave to his wife the money with which to purchase it, and there is no evidence tending to show a gift either of the money or furniture to her as her separate property. It therefore remained the property of the intestate at the time of his decease, and the administratrix should account therefor.

It is claimed on behalf of the administratrix that the deposit of the money in the Excelsior Savings Bank in the name of Richard or Kate Ward is evidence of a gift of the fund to Kate Ward; but it seems to me that the transaction lacks the essential features of a gift *inter vinos,*in which expressions of an intention to make a gift, and an actual delivery of the subject thereof to the donee, must concur *(Bedell*agt. *Caril, 33 N. Y.,*581; *Shuttleworth*agt. *Winter,*55 *N. Y.,*624; *Irish*agt. *Nutting,*47 *Barb.,*370). It seems to me quite clear that there was not such a parting with the possession or title to the money so deposited as to divest the intestate of all right to the money, which is absolutely essential to a gift *inter vivos*; indeed, the fact that it was deposited by the husband in his name, as well as that of his wife, was the highest evidence that he did not intend to part with his control over it; and the most that it seems to me can be said in respect to the deposit being to the credit or order of his wife was to enable her, under the rules of the bank, to draw the money in case he was unable for any reason to do so ; and in doing, so, she could and would act as the agent of her husband.

In *Irish*agt. Nutting, above cited, it was held that where the intestate gave several notes of a third party to his wife, saying: I give you these notes, and if I never return they are yours,” did not constitute a gift, and Mr. justice Bacon, at page 383, says : “ It clearly cannot he sustained as a gift *inter vinos,*for the obvious reason that it was coupled with a condition upon the happening of which the owner was to recover possession. An absolute gift divests the donor’s title, and requires a renunciation on his part, and the acqui*319sition on the part of the donee of all title to, and interest in, the subject of the gift. A valid gift, .however, has no reference to the future, but is one which goes into immediate and absolute effect.”

Such I understand to be the true doctrine established by an unbroken line of authorities, unless it may be said to have been shaken by the case of *Sanford*agt. *Sanford*(45 N. Y.), where the language of judge Peokham, at page 726, is as follows: “Taking this note in the name of himself and wife shows that the husband intended to give it to her in case she survived him, and the delivery to herwas unnecessary to perfect the gift,” which, taken in its broadest signification, seems to me to run ■ counter to all settled notions of the law in respect to such gifts, and seems not to have been fortified by the learned judge who delivered that opinion by any authority.

It is with great reluctance that I venture to question the force and effect of that decision, and yet, considering that that case was the reversal of a judgment entered upon the report of a referee in favor of the validity of a gift upon exceptions to the rejection of testimony, and that it seems to run counter to the settled law upon the subject without a review of any of the former decisions, and as it differs somewhat widely in its facts from this case, I deem it my duty to hold according to the general line of authorities, that the deposit of the money in the bank in the name of Richard or Kate Ward was not intended as a gift to the wife, and in this conclusion I am fortified by the absence of proof that the bank-book was ever out of the possession of the intestate, or in the possession of the administratrix until after his decease.