Hyperlawhypertext legal database McElroy v. National Savings Bank of Albany 8 A.D. 192

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McElroy v. National Savings Bank of Albany

8 A.D. 192 Court N.Y. App. Div. English

Delivered by Parker, P. J.:

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p. 192
John E. McElroy and Alice Bell, as Executors, etc., of James C. Bell, Deceased, Plaintiffs, v. National Savings Bank of Albany and Montgomery H. Rochester, as Administrator, etc., of Alida P. Bell, Deceased, Defendants.

Headnote

Gift — deposit in a savings bank by a husband to the credit of his wife or himself or the survivor —on the husband’s death the wife is entitled to it — delivery of the passbook is unnecessary.
The deposit of money in a savings bank by a husband to the credit of his wife or' himself, or the survivor of them, imports a gift to the wife in case she survives, her husband. Where, under such circumstances, the husband has informed his wife of his purpose to give her the deposit, a delivery of the pass book by ' the husband to the wife is not necessary to perfect the gift in her; and her administrator is entitled to hold the deposit as against the executors of the-husband.
Submission of a controversy upon an agreed statement of facts,, pursuant to section 1279 of the Code of Civil Procedure.
The controversy was as to who was entitled to a deposit in the. National Savings Bank in the city of Albany. The account stood in the name of Alida P. Bell or James 0. Bell, her husband, or the-survivor of them. James C. Bell died prior to the death of Alida P. Bell, who was his wife.
Isaac Lawson, for the plaintiffs.
Rosendale & Hessberg, for the National Savings Bank.
Albert Rathbone, for Montgomery H. Rochester, administrator, etc.

I am of the opinion that the deposit by James 0. Bell of the money in hank to the credit of his wife, Alida P. Bell, and himself, with the provision that either of them, or the survivor of them, was. to draw it, imports a gift to the wife in case she survives him, and that delivery of the pass book to her by the husband was not necessary to perfect such gift. The principle decided in Sanford v. Sanford ( 45 N. Y. 723 , and again in 58 id. 69) seems to he applicable to the facts before us, and to so hold. (See, also, Fowler v. Butterly, 78 N. Y. 68 , 72; Scott v. Simes, 10 Bosw. 314 .)

p. 193
The intent of the husband to that effect is very plain, and it seems that the wife had been informed of his purpose, and expected to receive the benefit of it. The only question is whether he had fully-perfected the gift by the delivery which the law requires. None of the cases cited by the plaintiffs’ counsel are necessarily in conflict, with the principle decided in the cases above cited, and I consider them authority for the conclusion which I reach.

A judgment should be entered directing that upon the death of James C. Bell the balance in the bank to the credit of himself and. Alida P. Bell became the property of Alida P. Bell, and that, upon her death, the defendant Rochester became entitled to the same as assets of her estate.

All concurred.

Judgment directed in favor of the defendant Montgomery H„ Rochester.

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