The plaintiffs brought this action against the Manufacturers’ National Bank of Troy to recover the amount of a joint deposit in that bank, aggregating $5,319.98. There is no doubt that they were able to allege and prove a clear cause of action at law, but a portion of the fund which stood credited to the plaintiffs on the books of the bank was derived from a deposit originally made in the name of Christina McGovern. The bank, being fearful that the transfer of that fund to the plaintiffs involved fraud or irregularity, made a motion to bring in the present defendant, depositing the portion of the fund in question to the order of the court in the litigation, and this motion was granted, the bank retiring as the defendant in the action.
The plaintiffs thereupon served a supplemental complaint, alleging the primary obligation of the bank to them and the fact of the granting of the interpleader as to the sum of $3,994.49, the sum really in controversy, and claimed to be the owners of said sum, demanding judgment therefor.
The substituted defendant denied the material allegation of the complaint relating to the ownership of the fund, and as “ a second and further defense herein, and as a counterclaim,” alleged the death of Christina McGovern on or about the 15th day of December, 1917, leaving next of kin surviving. It was alleged that she was at the time of her death the owner of the fund in controversy, and the steps taken for the appointment of the defendant as administrator of the estate of the said Christina McGovern are set forth. The answer then alleges a fraudulent conversion of the fund in suit by the plaintiffs, and that “ the said sum of $3,994.49 on deposit *455to the credit of this action pursuant to the order of inter-pleader in this action, was and is the money and property of Christina McGovern, deceased, and this substituted defendant as her administrator has the right to the possession thereof for the purposes of the administration of her estate, and the payment of said moneys to the next of kin of said decedent.”
Upon the trial of the action the evidence clearly showed that in an action at law against the bank the plaintiffs were entitled to recover; the deposit of the funds by the plaintiffs was established, and with this, of course, the promise of the bank to pay the fund to them upon demand. The question presented to the court, therefore, was whether Christina McGovern was, at the time of her death, the equitable owner of the deposit to the extent alleged in the answer of the substituted defendant. In other words, when it was shown that the plaintiffs actually had a deposit covering the fund, in the bank of the original defendant, the substituted defendant undertook the burden of showing that the money of Christina McGovern was fraudulently and unlawfully mingled in such deposit; that the equitable title therein vested in the said Christina McGovern at the time of her death, and the only question here is whether he has sustained the burden of proof thus assumed. On the face of the evidence the plaintiffs were entitled to the deposit of $5,319.98 standing in their names in the Manufacturers’ National Bank, made up in part of the $3,994.49 which was, concededly, transferred from the account of Christina McGovern, and there is no presuumption that this transfer was unlawfully or fraudulently made.
The learned court, upon the trial, submitted to a jury the question of the ownership of the money, and the jury found that Christina McGovern was not the owner of the fund at the time of her death, and this finding of fact was accepted by the court, so that in this equitable action the defendant has had the privileges of a trial by jury as to the material fact in the case, and, unless the evidence clearly fails to sustain the verdict of the jury and the decision of the court, there is nothing to justify this appeal.
Indeed, it does not seem to be seriously urged that the judgment is not proper upon the evidence, but because the learned trial court made reference to an identification card, *456which does not appear to have been technically offered and received in evidence, a motion to set aside the judgment and for a new trial was made, and the motion having been denied, appeal comes to this court from the order denying the motion, and the most of the argument centers around this incidental matter. The learned trial court found, at the request of the defendant, that the order of Christina McGovern directed to the Manufacturers’ National Bank provided to “ Pay Trans to Joint a/c Margaret Hayes and Christina McGovern or Bearer Seventy-eight hundred one 69 /100 Dollars, on account of Money standing to my credit or subject to my control in your Bank, as a Special Deposit on interest per Pass Book No. 14916,” and the special objection urged to the transaction is that the bank clerk figured up the interest to the date of the transfer, noted it upon the margin of the order, and transferred the whole amount to an account in the names of Christina McGovern, Margaret Hayes, “ subject to either or the survivor.”
Was there any other reasonable construction to be placed upon the order than that given it by the bank clerk? The direction was to transfer to a joint account in the name of “ Margaret Hayes and Christina McGovern or Bearer Seventy-eight hundred one 69 /100 Dollars, on account of Money standing to my credit or subject to my control in your Bank, as a Special Deposit on interest per Pass Book,” etc. The sum mentioned was the total of the principal fund, and a direction to transfer that amount of a “ Special Deposit on interest,” was clearly designed to authorize the transfer of the entire account; no one would assume that it was the intention of the person giving such an order to separate “ a Special Deposit on interest ” from the interest it had earned. But assuming, for the sake of the argument, that the order was limited to the amount named, there can be no question that there was a valid order for this sum, and it was not vitiated in its entirety because a bank clerk misconstrued the language. The transfer was good as to the sum of $7,801.69, and there is no means of separating the interest in the action now before the court. I do not, however, recognize the justice of this construction; the order fairly construed in the light of all the circumstances was a direction to transfer the “ Special Deposit on interest,” leaving the bank clerk to *457compute the exact amount. This order, originally drawn on the 14th of April, 1917, was redated by the bank clerk with a rubber stamp on the 12th day of December, 1917, when it was presented, and this is stressed by the appellant as though it had a bearing upon the alleged fraud of the plaintiffs, but it was obviously merely his private or banking memorandum of the date to which the interest was to be figured, in the place of the date which had been originally placed upon the order by the person drawing it. And then it is urged that this same bank clerk failed to obey the instructions of the order because he transposed the names and neglected to insert the conjunction “ and ” between them, and added the words “ Subject to either or the survivor.” But the order did not undertake to prescribe the form; it was to transfer “ to joint a/c Margaret Hayes and Christina McGovern,” and this is exactly what was done. A joint account is in law “ subject to either or the survivor,” and there can be no reasonable doubt that the form of the credit complied with the order.
The fact that Margaret Hayes acted upon the theory that a portion of this fund should be distributed among the next of kin of Christina McGovern, and that she actually did distribute about one-half of it to such next of kin, does not operate to change the law. As survivor of this joint deposit she became entitled to the whole of it, and as it has been found that there was no fraud in the transfer, and no undue influence, which is but a species of fraud, it must follow that the mere fact that the trial justice made reference to an identification card as being corroborative of the plaintiffs’ theory of the case does not justify the reversal either of the order or the judgment. The facts as they appear in the evidence, entirely apart from the identification card, fully justify, if they do not compel, the judgment.
The judgment and order appealed from should be affirmed, with costs.
' Judgment and order reversed on the law and facts, and new trial granted, with costs to the appellant to abide the event. The court disapproves of the seventeenth finding of fact, and of the first, second, third, fourth and sixth conclusions of law so far as they contain any finding of fact.