This action was brought by the personal representative of Sarah Ann Roof against the personal representative of John C. Roof, her husband, to recover possession of a savings bank pass book as evidence and a muniment of title to the deposit represented thereby, which, according to the rules of the bank, could be drawn only upon the production thereof. The defendant by his answer claimed that, as such personal representative, he was entitled to possession of the pass book and to the amount of the deposit. Upon the trial before a jury a nonsuit was granted, and the judgment entered thereon having been affirmed by the Appellate Division, the plaintiff came here.
John C. Roof and Sarah Ann Roof, his wife, were aged people, without children, and each had a small amount of property. On the second of September, 1890, when she was seventy-five years of age, Mrs. Roof made her will, whereby she gave to her husband the use of all her property during his life. On the 18th of July, 1895, when he was seventy-seven years old, Mr. Roof made his will whereby he gave to his wife the use of all his property during her life. On the eighth of January, 1896, each had a pass book from the Jefferson County Savings Bank, representing deposits made by them respectively at various times. The balance on that day due her, according to her pass book, was the sum of $911.26, and the balance due him, according to his pass book, was the sum of $900.88. On the day last named Mr. and Mrs. Roof executed an instrument, of which the following is a copy:
"THERESA, N.Y., Jan'y 8, 1896.
"To Jefferson Co. 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 to the survivor of them, *Page 145 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."
Mrs. Roof had a stroke of paralysis on the tenth of January, 1896, and died ten days later, while Mr. Roof survived until the eighth of August, 1899. At some time he took her pass book and said paper to the bank when the entry was changed by the paying teller, who added the name of John C. Roof as one of the depositors, so that it read: "Jefferson County Savings Bank, in account with Sarah Ann Roof and John C. Roof." Both accounts were changed on the ledger of the bank so as to read in the same way, but no change was made in the pass book of Mr. Roof, which was not produced for the purpose. Whether said changes were made before or after the death of Mrs. Roof was a question upon which there was a conflict in the evidence.
When the plaintiff rested the defendant moved for a nonsuit, which was granted, although counsel asked to go to the jury "on the question as to whether there was an intent upon the part of Sarah Ann Roof to transfer her interest in this fund to her husband;" and also "upon all the questions of fact in the case." Each request was denied separately and a separate exception was taken to each ruling.
The instrument of January 8, 1896, was a letter of instructions to the bank, directing that the two accounts should be merged into one, running to the two depositors severally, or to the survivor. The object of the merger, as expressly stated in the paper, was to enable the survivor to draw the whole amount upon the death of the other. The question at once arises, why did these two old people desire to confer authority upon the longest liver of them to draw the entire sum on deposit to the credit of each separately? They were husband and wife, so that the object may have been a gift. They had made mutual wills, so that the object may *Page 146 have been convenience both of administration and enjoyment under the wills, which gave a life use.
The letter of instructions was not literally complied with by the bank, which changed the account in question so as to make it joint in form, whereas the direction was to make it several. The two names should have been separated by the word "or," but instead, they were united by the word "and." What the bank did, however, is not very important, but what Mr. and Mrs. Roof wrote is of the highest importance. As the account was to be several in form, either could draw during the lifetime of both, which would tend to show that a gift inter vivos was not intended. (Gannon v. McGuire, 160 N.Y. 476, 481; Beaver v. Beaver,117 N.Y. 421, 428.) The fact that neither of the parties was at the time laboring under the apprehension of death from some disease then existing would tend to show that a gift causamortis was not intended. (Ridden v. Thrall, 125 N.Y. 572,579; Williams v. Guile, 117 N.Y. 343, 349.)
When a donor receives as much as he gives, a consideration is suggested, and a consideration suggests a contract. Each of these parties had the same chance of benefit as the other, and the question is presented whether there was an agreement underlying the letter of instructions of which the latter, as the means of carrying it into effect, was some evidence.
Considering that the relation of husband and wife existed between these persons; that they had no near relatives; that they had made mutual wills; that they had both reached extreme old age; and that their bank accounts were substantially equal in amount; and reading the letter of instructions in the light of these facts, I think that the question of fact arose whether each had transferred to the survivor his or her bank account, or what should be left of it upon the death of the shortest liver. While the letter of instructions was not a transfer, it was evidence from which, in connection with the other facts, a jury might infer, not necessarily but in the exercise of their sound judgment, that such a transfer as would fit the letter had been made. Since the letter is *Page 147 adapted to carrying a particular form of transfer into effect, it is some evidence that a transfer of that kind had been made. It may have been drawn for some other purpose, such as mere convenience, but it was for the jury to say, under all the circumstances. While Mr. Roof was named as the executor of his wife's will, she was not named as the executrix of his will, so that convenience of administration would not, necessarily, have been promoted by the letter.
A contract by which each of two owners of a fund, as tenants in common, transfers his interest therein to the other if he survives him, is supported by a good consideration, and I see no reason why the intention of the parties should not be enforced by the courts. While such an agreement cannot be performed until after the death of one of the parties, it is complete and irrevocable, for neither can withdraw therefrom without the consent of the other. It is not testamentary in character, because it is founded on a valuable consideration and is not subject to revocation. It is as absolute as a deed, "which is to take effect so as to pass the title at" the death of the grantor. (Worth v. Case, 42 N.Y. 362, 366; Carnwright v. Gray,127 N.Y. 92.) When a husband takes securities payable to himself or his wife, they become hers if she survives him, and the delivery thereof to her by him is not necessary to perfect the gift. (Sanford v. Sanford, 45 N.Y. 723; Fowler v. Butterly,78 N.Y. 68, 72.) This is upon the theory of a gift where there is no consideration, but where there is a contract between husband and wife, resting upon a mutual and equal consideration, providing that the security created by both and standing in their names severally shall belong to the survivor, effect must be given to it or the law of contracts is violated.
Without prolonging the discussion I am of the opinion that there was a question of fact other than that discussed in the prevailing opinion which should have been sent to the jury, and I, therefore, concur in the result.
CULLEN, Ch. J., GRAY and O'BRIEN, JJ., agree with HAIGHT, J.; BARTLETT, J., agrees with VANN, J.; WERNER, J., absent.
Judgment reversed, etc. *Page 148