This action was brought to recover a savings bank pass book issued to Sarah Ann Roof in her lifetime by *Page 140 the Jefferson County Savings Bank. The defendant was the administrator with the will annexed of John C. Roof, and claims the right to hold the pass book as the property of his testator.
John C. Roof and Sarah Ann Roof were husband and wife. They had both been married before, but neither had any children. They both had made deposits in the Jefferson County Savings Bank and a pass book had been issued to each of them. Sarah Ann Roof had a balance upon her book of $911.26, and John C. Roof had a balance upon his book of $900.88. They were about eighty years of age and had each made and executed a will, in which each gave the use of his or her property to the other during life, and upon the death of the survivor each had bequeathed his or her property to collateral relatives. After the execution of these wills, and on the 8th day of January, 1896, they signed a paper, of which the following is a copy:
"THERESA, N.Y., Jan. 8, 1896.
"To Jefferson County Savings Bank:
"GENTLEMEN. — We, the undersigned, owners of bank books No. 23,661 and No. 25,472 issued by your bank, desire to have the accounts therein merged into an account running to John C. Roof or Sarah Ann Roof or the survivor of them. Our object being that, in case of the death of either, the other may draw the whole amount.
"Witnesses, JOHN C. ROOF. "MARY E. COUNTRYMAN. SARAH ANN ROOF. "LIZZIE COUNTRYMAN."
Two days after the making of the foregoing instrument Sarah Ann Roof had a stroke of paralysis and was confined to her bed until her death, which occurred ten days later. Some days after the making of the paper John C. Roof took the paper to the savings bank together with the bank book of his wife, and the teller pasted the paper in the bank book containing signatures and wrote upon the pass book after the name of Sarah Ann Roof the words "and John C. Roof" so *Page 141 that the account read "Jefferson County Savings Bank in account with Sarah Ann Roof and John C. Roof." He also made the same change upon the ledger account. It is claimed on behalf of the plaintiff that the paper was taken to the bank and the changes made in the books after the death of Mrs. Roof and that prior to her death and after her paralytic stroke she spoke to her husband in monosyllables at repeated intervals indicating that she wanted her own and that he replied to her that he knew what she wanted and that he would get the paper and destroy it, and that the conversation had reference to the above-described paper.
The first question which we deem it important to consider is the meaning and effect intended to be given by the parties to the paper. As we have seen it is addressed "to the Jefferson County Savings Bank." The respective owners of the bank books which were described in the paper expressed their desire to have their accounts merged so as to run to John C. Roof or Sarah Ann Roof or the survivor of them. They then conclude by stating their object to be "that in the case of the death of either the other may draw the whole amount." There are no words here indicating any present gift from one to the other of any portion of the funds on deposit in the bank. On the contrary, it is apparent that each in his or her lifetime intended to retain the fund so that either could draw upon their deposits as their necessities might require; but it is apparent that they intended that upon the death of either the other should be permitted to draw the whole amount. The purpose for which the survivor might draw the whole amount is not specified. In the absence of evidence upon the subject the inference might be permissible that it was their intention to give the survivor the right to draw the whole amount so as to make it his or her own property. Assuming this to be so, the effect of the paper was, therefore, a written order addressed to the bank requesting it to change their respective deposits so as to make each the joint owner of the entirety, analogous to a joint tenancy or tenant by the entirety in real estate, so that upon the death of *Page 142 one the survivor became the owner of the whole. (Bertles v.Nunan, 92 N.Y. 152.)
As we have seen, the paper was an order merely and was executory until it was presented to the bank and the deposits were changed in accordance therewith. It is conceded that it was subsequently taken to the bank by John C. Roof and the changes made so far as the deposit of Mrs. Roof was concerned, but was this change made during her lifetime? Upon this subject considerable evidence was taken and if the fact is material it, doubtless, became a question for the jury to determine. This brings us to a consideration of the question as to whether the order is deemed to be revoked by the death of Mrs. Roof before it was delivered to the bank and the change in the deposits made. The order was executory until its delivery to the bank and the changes in the deposits were made. It, consequently, could be revoked by either party at any time before the order had been complied with. It is contended that Mrs. Roof did revoke by her statements in monosyllables, but these declarations were too vague and uncertain to warrant a finding of fact to that effect. If it was revoked it was by reason of her death before it was delivered to the bank. The paper, as we have seen, was a mere executory order, which did not constitute an executed gift or make either of the parties thereto a creditor of the other. Mrs. Roof only intended to give to her husband the same right to draw upon their joint account that she had until her death and then if he survived her the right to draw the whole, but before her order had been executed she died and her estate at once became vested in her heirs at law or upon proof of her will in her collateral relatives specified, subject to the life use of her husband. If her husband had become her creditor he could prove his claim as against her estate, but he was not a creditor. If the execution of the paper was a gift in presenti, then, of course, the money on deposit became his, but it was not such a gift nor so intended, for she retained the right to draw every dollar of the fund and use it for her own purposes. It was not a gift intervivos, for the reason that, as we have shown, *Page 143 the order was executory and not executed. It was not a giftcausa mortis, for the reason that the parties at the time of executing the paper were not suffering from any disease or apprehensive of death from any impending perils. The paper, as we have seen, was left in the possession of John C. Roof. He is deemed, therefore, to have become the agent of his wife to take the paper to the bank, but if he failed to do this within her lifetime his agency, by the happening of that event, is deemed to have been revoked.
Schouler on Personal Property (Vol. 2, § 86) correctly states the rule as we understand it: "An agency is revoked by the principal's death; therefore, the agent of one who intends a giftinter vivos must have performed what was incumbent upon him to make the transfer complete during the donor's lifetime, otherwise the gift fails as though the donor himself had failed to make a seasonable delivery. Nor can a gift inter vivos be sustained which contemplates a postponement of delivery by the agent or trustee until the donor's decease, for a gift of personalty made after this fashion must stand, if at all, as a gift causamortis, or else on the footing of a testamentary disposition, with all the formalities of a will. Delivery, then, in all cases of ordinary gift must have been made during the donor's lifetime. But if the gift has been once completed, so as to fully transfer the beneficial interest from donor to donee, in accordance with their mutual intent, and so as to make any third party holding the custody, the trustee for carrying out the original purposes of the donation, or the donee's agent, the subsequent death of the donor, sooner or later, will leave the gift unimpaired." (Story on Agency, § 488; Farmers' L. T. Co. v. Wilson,139 N.Y. 284, 289.)
We conclude that the question as to whether the order was delivered to the savings bank during the lifetime of Mrs. Roof is material, and under the evidence the question as to whether it was so delivered was for the jury and that the exception taken by the appellant to the nonsuit raises an error of law which requires a reversal of the judgment. *Page 144
The judgment should be reversed and a new trial granted, with costs to abide the event.