When George W. McCullough changed the savings bank account to the names of himself and wife he had controlling authority for believing that that act evidenced an intention on his part to benefit his wife to the extent of a right of survivorship in said fund, and that' nothing remained to be done to effectuate that intention. (Borst v. Spelman, 4 N. Y. 284; Sanford v. Sanford, 45 id. 726; S. C., 58 id. 69.) The rule of those cases has been regarded as sét-' tied law (Fowler v. Butterly, 78 N. Y. 68, 72; Augsbury v. Shurtliff, 180 id. 138, 147; De Puy v. Stevens, 37 App. Div. 289, 294; Kelly v. Home Savings Bank, 103 id. 141, 150), and has squarely' been held to apply to a deposit in a savings bank máde by the husband in the names of himself and wife. (Platt v. Grubb, 41 Hun, 447; McElroy v. Albany Savings Bank, 8 App. Div. 46; Matter of Meehan, 59 id. 156.) The cases are discriminated by Mr. Justice Jenks in the Meehan Case (supra), and we might well adopt his'opinion in that case without further discussion; but as we are riot agreed it may be well to observe that in determining the intention of said McCullough in the case at bar we are not limited to his act. It is undisputed that he did not make the .change for the purpose of convenience, as might have been found in the Meehan case; the wife in this case never drew on the account during the life of her husband. After changing the form of the savings bank account, said McCullough made his will, by which he gave his wife the life use of his property, remainder to his brother. Besides the small savings bank deposit, he had real estate which yielded gross .receipts of fifteen dollars per month. He told his pastor—referring to the fact of having made his will — that the house should go *848to his brother William, and the money to his wife ;■ that lie had put. the money in the bank for that purpose. That statement, instead - .of contradicting, explains the will, if indeed any explanation were., needed. Surely the'testator did not intend such ill provision for his. wife as the use of his small estate, and it is not too much to suppose that he relied on legal advice for' the belief that having, changed the form of the savings bank account he did not' need to. • mention it in hi's will.' I b'eliéve that savings bank, accounts are frequently opened in tins manner, especially by. men of limited means, for the purpose of giving the wife the right of survivor-ship; and irrespective of the reasons for the rule, or whether - they longer exist,'it should not ñów be changed:' But. I do not think that .the rule rested wholly.upon the common-law doctrine of unity of husband and wife/as is said, or that the reason for it was destroyed by the acts removing, the disabilities of .'married women. Sanford v. Sanford (supra) was first decided in 1871-, and involved a note made in 1864. -At common law the husband could hot- by direct conveyance give or grant an estate io the wife, and the wife’s. choses in action reduced to possession during coverture belonged to- ■ the husband. But by making a deposit or taking a security in the. .. name of himself and' wife, the husband could create a right of survivorship in the wife. That right, instead of being based on the general rule,'was rather an exception to it. The transaction was': not strictly a gift inter vivos, or causa mortis, .and delivery was; neither necessary nor practical, as the husband .retained control and the right of disposition during his life. Such right thus retained is not strictly analogous-to those rights as tenant by the entirety which . the husband possessed jureuxoris ; the latter only,, not the. right of survivorship, were affected by the, acts removing the disabilities of married women. (Hiles v. Fisher, 144 N. Y. 306.) It may be • that the husband’s right to, confer upon the wife this peculiar.estate , or interest, a right of survivorship only, simply by making a deposit or investment in- their joint names, was an outgrowth of .'doctrines ■ applicable to ■ the status of husband and wife at common law'; it. was declared to rest upon the, presumption that by doing that the husband intended to benefit the wife: As he coukl not thus -benefit. - her during their joint lives, he haying the right to reduce to possession even her' own choses in action, it followed that he must' *849have intended to give her the right of survivorship, and it was decided that he could do that without the formalities necessary for a gift inter vivos or causa mortis. A rule based on human experience, acted upon for many years in the light of judicial decisions, ought still to hold good, and I am unable to perceive why an additional requirement, i. e., delivery, should be imposed simply because the wife’s disabilities have been removed by statute. Sanford v. Sanford (supra) was not overruled, but its doctrine reaffirmed in Matter of Albrecht (136 N. Y. 91), as was pointed out by Mr. Justice Jenks in the Meehan Case (supra). The Albrecht case did not decide that there could be no right of survivorship in choses in action payable to husband and wife, even though each had contributed equally thereto, but that in such case there was no presumption that the parties so intended. Joint tenancies of savings bank deposits may,, however, be created, if so the parties intend, irrespective of whether the tenants be husband and wife, and in such case the right of survivorship exists. (Farrelly v. Emigrant Indust. Savings Bank, 92 App. Div. 529; Kelly v. Home Savings Bank, supra.) The question then is one of intention, to be determined by-presumptions in the absence of other proof. In case a person deposits his own money in a savings bank in the name of himself and another, not his wife, the presumption is that it was done for purposes of convenience only. (Matter of Bolin, 136 N. Y. 177.) But in the case of husband and wife the courts have said, and I think experience has shown, that the husband is presumed to have' intended to benefit the wife to the extent at least of conferring upon her the right of survivorship; and as it has uniformly been held that the husband could do that without creating a joint tenancy and without delivery, that rule should be adhered to. I think it was necessarily held in Augsbury v. Shurtliff (supra) that delivery was not necessary to confer such right of survivorship, and it is difficult to perceive how there could be a delivery, if only such right were intended to be conferred. The transaction is complete when the security is taken or the deposit is made in the joint names.
The judgment should be affirmed.
Jenks, Hookes and High, JJ., concurred; Gaynoe, J., read for reversal.