I am in accord with the legal principles stated in the majority opinion, but I cannot agree that they have been correctly applied in this case.
As stated in the opinion of the majority, the essential elements of a valid gift of personal property are: (a) an intention on the part of the donor to presently give; (b) a subject matter capable of passing by delivery; and (c) an actual delivery at the time. In this case, it may be conceded that the subject matter, namely, the savings account, was capable of passing by delivery. But I do not believe that the evidence established either an intention on the part of Mrs. Kendall topresently give to her daughter the fund represented by the savings account, or that there was ever any actual, or even constructive, delivery thereof to the daughter. Had the mother intended to give the money presently to the daughter, she could easily have accomplished that purpose by opening the account directly in the name of the daughter and having the daughter take immediate possession of the passbook from the bank. But she did not do that. On the contrary, she opened the account in the name of "Fay Kendall [the daughter] or Mrs. Fay Kendall [the *Page 30 mother]." She could also have made the fund payable to either of the designated parties and to the survivor of them, which is sanctioned by the law of this state and was permissible under the rules and regulations of the bank, as is evidenced by the written provisions on the reverse side of the signature card. Had she done that, the fund would now undoubtedly belong to the daughter. But that method likewise was not adopted.
The rule in this state, in such cases, is, as stated in In reSlocum's Estate, 83 Wash. 158, 145 P. 204, that
"The delivery must be such as will divest the donor of the present control and dominion over the property absolutely and irrevocably and confer upon the donee the dominion and control. .. . A gift will not be presumed, but he who asserts title by this means must prove it by evidence which is clear, convincing, strong and satisfactory."
That Mrs. Kendall did not divest herself of the present control and dominion over the savings account absolutely and irrevocably, and that the daughter Fay did not acquire such dominion and control, are manifest not only from the character of the account itself, but particularly from the manner in which the parties concerned afterwards dealt with the account. Three withdrawals, totalling three hundred forty-three dollars, were made within four months after the account was opened. Two of these withdrawals were made directly by Mrs. Kendall, and the third, although made by the daughter, was at the instance of Mrs. Kendall. The proceeds of each of the withdrawals were retained by Mrs. Kendall and used for her own purposes. The mere fact that the passbook was turned over to, and was kept by, the daughter is, in my opinion, an inconsequential factor and nowise refutes the more important fact that the mother continued to *Page 31 exercise at least a joint, if not a complete, dominion and control over the fund.
So far from proving title to the property in the daughter by evidence that was "clear, cogent, convincing, strong, and satisfactory," it seems to me that the respondent has definitely established the fact that Mrs. Kendall never wholly or irrevocably divested herself of dominion or control over the savings account, from which it follows that one of the vital elements necessary to effective delivery is lacking. If it be a matter of intention, I think the intention of the parties is best shown by their acts.
Two cases in particular are relied upon to support the majority's conclusion: Earnest v. Earnest, 26 Ala. App. 260,157 So. 885, and Raferty v. Reilly, 41 R.I. 47, 102 A. 711. Neither of those cases is, in my opinion, controlling here. In the Earnest case, a certificate of deposit had been taken out by the parents in the name of, and was delivered to, theirdaughter. That was not what Mrs. Kendall did here. Moreover, in that case, it appears that the daughter had lived with and nourished her parents in their declining years, in respect to which the Alabama court said:
"Under this state of facts, less positive and unequivocal proof is required to establish the delivery of a gift from parent to child than as between persons not so related."
We have no such situation in the case at bar.
In the Raferty case, which also involved a certificate of deposit, the instrument was by its terms made payable to either of the two parties named therein, or to the survivor, and the instrument was at all times retained and held by the party who ultimately became the survivor.
I am not so much concerned about the result in this particular case, but I am of the belief that it establishes *Page 32 a precedent the effect of which will be to undermine the rule so frequently affirmed by this court in situations of this kind. I therefore dissent.
ROBINSON, C.J., concurs with STEINERT, J.