(concurring.) I think on this trial the plaintiff has substantially overcome the objection of the court of appeals in this case, reported 117 X Y. 421, 22 ÍT. E. Rep. 940. The ground assumed for a reversal in that case was that the plaintiff had failed to prove the intention on the part of John O. Beaver to make a gift to his son at the time of making the deposit in the bank, and that the retention of the bank-book by him was evidence of a want of delivery. The court now, upon sufficient evidence, finds that it was the intention of John 0. to make a gift of the money deposited at the time of the deposit; and I think that my Brother Learned has established most successfully and completely, upon principle and authority, that the retention by the father of the bank-book, when the gift is made or intended to be made by him to his infant son, is as much an executed gift as if he had delivered the book to the son, or to some other person for the use and benefit' of the son. He, being the natural guardian and custodian of the property of his infant son, in the absence of any general guardian, could not defeat his own executed gift by retaining the bank-book.
Landon, J., dissenting.