a delivery of part in the name of the whole so as to make the whole gift effectual. We need not consider the question whether the deposits in the savings banks would pass as donatio causa mortis, by delivery of the books with the order of payment or the assignments, if disconnected from the rest of the scheme. The intended gift was not of those deposits or books specifically, but of a definite larger fund; and the books were delivered merely as means in part to carry out the entire purpose. That purpose failing, there is no intended gift of which the delivery of those books is an appropriate manifestation.

The result is, that the plaintiff must hold the funds as administrator. Instructions accordingly.1

PIERCE v. BOSTON SAVINGS BANK.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.

[Reported 129 Mass. 425.]

1880.

THE first case 2 was an action of contract brought by Martin A. Munroe, in the name of the administrator of the estate of William Green, Jr., to recover deposits in the defendant bank made by Green to the amount of $600. Writ dated June 19, 1877. The bank defended the action at the request of the administrator. Trial in the Superior Court, without a jury, before Gardner, J., who allowed a bill of exceptions, in substance as follows:

There was evidence tending to show that the intestate delivered the bank book, issued to him by the defendant, to Munroe, for his own use, as a donatio mortis causa, but there was no assignment of the bank book by Green. Upon making the first deposit, Green subscribed to the by-laws of the defendant bank. Printed on the outside of the bank book was the direction, "If you lose this book, give immediate information to the treasurer; " and inside, among the printed by-laws, were the following: "Art. 8. It shall be the duty of the treasurer to enter all deposits and payments made to depositors in the books of the bank, and a duplicate of such entry in the book of the depositor, which shall be his voucher and the evidence of the amount deposited." Art. 9. No person shall receive any part of his principal or interest without producing the original book."

It appeared that the estate of Green, including said deposits, amounted to $1,242.87, and that the debts were $25.40, of which last sum $25 was for the services of the doctor during Green's last illness, and forty cents for some tobacco, both of which items had been paid,

1 Contra, Ellis v. Secor, 31 Mich. 185 (1875); and see Meach v. Meach, 24 Vt. 591 (1852), and Kenistons v. Sceva, 54 N. H. 24 (1873); but the doctrine of donatio mortis causa has never been extended to real estate. Meach v. Meach, ubi sup. 2 Two cases were reported together; only the first is here given.

and that the funeral and other expenses did not exceed $150, unless the alleged donee, Munroe, was to be considered a creditor. Munroe testified that he had a legal claim against Green's estate of $1,300, for board furnished, and some expenses paid for Green; and on January 20, 1879, he commenced a suit against the administrator to recover said amount, which suit is now pending. Pierce was appointed administrator of Green's estate on January 29, 1877, and the estate was represented insolvent in October, 1879, and commissioners were appointed by the Probate Court.

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The defendant requested the judge to rule, as matter of law, as follows: 1. The delivery of the bank book to Munroe by the deceased in his last illness, even if made when he did not expect to recover, and if intended by the deceased as a donatio mortis causa, did not pass to Munroe any right to the deposit in the bank. 2. It appearing, from the testimony in the case, that the only property left by the deceased, including the bank deposit, amounted to $1,242.87, and that the deceased, at the time of the alleged gift, owed Munroc $1,300 in addition to debts to other persons; that the deceased was insolvent at the time of the alleged gift, and of his death, and the gift of the bank deposit, if good in other respects, as donatio mortis causa was void, because in fraud of creditors."

The judge declined so to rule, and found for the plaintiff for the amount of the deposits and the interest accumulated thereon, according to the terms of the deposits, down to the date of the writ, with simple interest at six per cent from the date of the writ, against the objection of the defendant, who contended that by the terms of the deposit the interest from the date of the writ should be, if anything, only at the rate of two per cent semi-annually, being the rate payable according to the terms of the contract of deposit.

To the above refusals to rule, and to the allowance of interest at six per cent from the date of the writ, the defendant alleged exceptions. C. F. Kittredge, for the defendant.

F. Ames, for the plaintiff.

ENDICOTT, J. It has been repeatedly held that a deposit in a savings bank may be the subject of a valid donatio causa mortis, as well as of a gift inter vivos, and that such a gift may be proved by the delivery of the bank book to the donee, or to a third person for the donee, accompanied by an assignment. Kingman v. Perkins, 105 Mass. 111; Foss v. Lowell Five Cents Savings Bank, 111 Mass. 285; Kimball v. Leland, 110 Mass. 325; Sheedy v. Roach, 124 Mass. 472; Davis v. Ney, 125 Mass. 590.

As there can be no manual delivery of the credit which the donor has in the bank, the delivery of the book, which represents the deposit, and is the only evidence in the possession of the donor of his contract with the bank, together with an order or assignment, operates as a complete transfer of the existing fund, and is all the delivery of which the subject is capable.

We have not had the question presented to us until now, whether the delivery of the book, without a written assignment or order, is sufficient to constitute a valid gift causa mortis or inter vivos. The question has, however, been decided in other jurisdictions in the affirmative.

It was held in Parish v. Stone, 14 Pick. 198, that the donor's own note, payable to the donee, was not the subject of a donatio causa mortis. But it was intimated in the opinion, that a promissory note of another person payable to bearer, or indorsed in blank, so as to pass by delivery, might be a good gift causa mortis, and that a mortgage given to secure it would pass as an inseparable incident to the debt, though not assigned, citing Duffield v. Elwes, 1 Bligh N. R. 497; and Duffield v. Hicks, 1 Dow & Cl. 1. See also Runyan v. Mersereau, 11 Johns. 534; Chase v. Redding, 13 Gray, 418; Ford v. Stuart, 19 Johns. 342.

In Grover v. Grover, 24 Pick. 261, the action was by an administrator on a promissory note, which, as appears by the statement of facts, was secured by a mortgage. The note and mortgage were given by the plaintiff's intestate to one Blanchard, in contemplation of death, without assignment. It was held that there may be a valid gift inter vivos of a promissory note, payable to the order of the donor, without indorsement or other writing by him. And it was said by Mr. Justice Wilde, in delivering the opinion, after reviewing the earlier English cases, "In coming to this conclusion, we concur with the decision in the case of Wright v. Wright, 1 Cowen, 598, wherein it was held that the gift and delivery over of a promissory note, mortis causa, is valid in law, although the legal title did not pass by the assignment." See Harris v. Clark, 3 Comst. 93. It was also decided that Blanchard, on the death of the donor, could maintain an action against the maker of the note in the name of the administrator, without his assent. It was not necessary to decide whether the gift of the mortgage security was valid, as the right to maintain the action did not depend upon that question, though Duffield v. Elwes was referred to, as deciding that the gift of the debt operated as an equitable assignment of the mortgage.

In Sessions v. Moseley, 4 Cush. 87, it was said that "a note of hand of a third person, a security for money, or a chose in action, however it may have formerly been considered, is now held to be the proper subject of such a gift." And in Bates v. Kempton, 7 Gray, 382, it was decided, on the authority of these cases, that, by the law of Massachusetts, a negotiable note is the proper subject of such a gift without indorsement, and that the donee may maintain an action on it in the name of the administrator of the donor without his consent. See also Borneman v. Sidlinger, 15 Maine, 429. So the delivery of bonds, or a policy of life insurance with the deposit note, have been held to constitute good gifts mortis causa without assignment of the instruments. Snelgrave v. Baily, 3 Atk. 214, per Lord Hardwicke; Witt v. Amis, 1 B. & S. 109 ; Wells v. Tucker, 3 Binn. 366; Waring v. Edmonds, 11 Md. 424.

The decision of Lord Hardwicke in Ward v. Turner, 2 Ves. Sen. 431, in which he held that the mere delivery of receipts for South Sea annuities was not sufficient to constitute a good gift causa mortis, distinguishing it from the case of Snelgrave v. Baily, was said by Mr. Justice Wilde, in Grover v. Grover, to be technical and unsatisfactory, and to have no application to our laws, which place bonds and other securities on the same footing. In Westerlo v. De Witt, 36 N. Y. 340, the delivery of a certificate of deposit on the New York Life Insurance and Trust Company was held to be effectual, without a written assignment, to transfer the deposit itself to the donee as a donatio causa mortis. So a delivery to a donee of a savings-bank book containing entries of deposits to the credit of the donor, with the intent to give the donee the deposits represented by the book, has been held to constitute a complete gift of such deposits, and that such delivery vests the equitable title in the donee without assignment. Hill v. Stevenson, 63 Maine, 364; Tillinghast v. Wheaton, 8 R. I. 536; Camp's Appeal, 36 Conn. 88; Penfield v. Thayer, 2 E. D. Smith, 305.

1

A savings-bank book has a peculiar character. It is not a mere pass-book, or the statement of an account; it is issued to the person in whose name the deposit is made, and with whom the bank has made its contract; it is his voucher, and the only security he has, as evidence of his debt. The bank is not obliged to pay to the depositor the money in its hands except upon presentation of the book; and if in good faith. and without notice it pays the money deposited to the person who presents the book, although the book has been obtained fraudulently by him, the bank is not liable to the real depositor. Sweeney v. Boston Five Cents Savings Bank, 116 Mass. 384; Wall v. Provident Inst. for Savings, 3 Allen, 96; Levy v. Franklin Savings Bank, 117 Mass. 448; Goldrick v. Bristol County Savings Bank, 123 Mass. 320.

The book is the instrument by which alone the money can be obtained, and its possession is thus some evidence of title in the person presenting it at the bank. It is in the nature of a security for the payment of money; it discloses the existence and amount of the fund to the person receiving it, and affords him the means of obtaining possession of the same. We can have no doubt that a purchaser, to whom such a book is delivered without assignment, obtains an equitable title to the fund it represents; and a title by gift, when the claims of creditors do not affect its validity, stands on the same footing as a title by sale. Grover v. Grover, 24 Pick. 261.

In the first of the cases now before us, the delivery of the bank book to Munroe, by Green, in his last sickness, without a written assignment, made in contemplation of death, and with the intent thereby to transfer the deposit in the bank to Munroe, constituted a valid donatio mortis causa, and Munroe may maintain an action against the bank for the

1 In Ashbrook v. Ryon, 2 Bush, 228 (1867), the delivery of a pass-book was held not to be a good gift mortis causa; the bank would seem not to have been a savings bank.

amount of the deposit, in the name of Green's administrator, without his consent.

The judge properly refused to rule, upon the facts presented, that the gift to Munroe made the estate insolvent, and was therefore void because in fraud of creditors.

It is true that a gift mortis causa cannot avail against creditors. In such case the donee is in the same position as legatees and heirs, for strictly speaking the only property which a person by gift causa mortis or by will can voluntarily dispose of, without consideration, is the balance left after the payment of his debts. Munroe therefore, as donee causa mortis, took his title to the bank deposit subject to the right of the administrator to reclaim it, if required for the payment of debts. Mitchell v. Pease, 7 Cush. 350; Chase v. Redding, 13 Gray, 418. But, upon the facts in this case, Munroe is the only person against whom, as creditor, the gift would be void, and it cannot be said to be a fraud as against him.

It appears that Pierce was appointed administrator in January 1877, and that the estate of Green, not including the deposits in the bank, amounted to $642.87. This action was brought in June 1877. In January 1879, Munroe brought an action against the administrator, alleging that Green's estate was indebted to him in the sum of $1,300, for board of Green and other expenses paid for him. Pierce thereupon represented the estate as insolvent in October 1879, and commissioners were appointed, but no further action seems to have been taken. The only debts besides the claim of Munroe amounted to $25 for the doctor's bill during Green's last sickness, and forty cents for some tobacco, which have both been paid. The funeral and other expenses did not exceed $150, but these are not debts within the meaning of the Statute in regard to the settlement of the estates of deceased persons. The expenses of the funeral, and of the last sickness, and the expenses attending the administration, we must presume to have been paid before the estate was declared insolvent. The doctor's bill would come within this category. Gen. Sts. c. 99, § 1. Munroe therefore was the only creditor. If he should establish his claim against the estate for $1,300, he would be entitled only to what remains of the $642.87 after the above payments, and could make no claim against the administrator for funds in his own hands, by virtue of the gift from Green. It would be an idle ceremony to have the bank deposit paid over to Pierce, the administrator, in order that he should deduct from it the claim of Munroe, pay him, and also return to him the balance.

As we understand the bill of exceptions. by the terms of the contract upon which the deposit was held by the defendant, the rate of interest thereon is four per cent per annum, payable semi-annually. This action is brought upon that contract, and the damages for the nonpayment of the money are to be estimated at that rate, till the debt is merged in the judgment. Brannon v. Hursell, 112 Mass. 63; Union Institution for Savings v. Boston, 129 Mass. 82; Miller v. Burroughs,