(dissenting.) I think the evidence in this case fails to show a delivery of the bonds to William H. MacICaye, as trustee, sufficient to sustain a gift. There is no evidence as to the circumstances under which the bonds were delivered to William H. MacICaye. All that appears is that, at the time of his death, they were in his possession, and there was also in his possession a receipt which he appears to have given to his father, but which had been subsequently delivered by his father to him, whereby he stated that he received from the father the bonds to be held in trust for the defendant, Theodora Edith MaeKaye, for her sole use and benefit and behoof, and which then contained the following provision; “Said bonds, for and during his life, to be subject to the order of my father.” It does appear that the testator used the interest on the bonds during his life, and never parted with the right to control their use. He appears to have exercised all acts of ownership, and to have treated the bonds as his own property. In Jackson v. Railroad Co., 88 N. Y. 526, the court says: “The delivery must be such as to vest the donee with the control and dominion over the property, and to absolutely divest the donor of his dominion and control, and the delivery must be made with the intent to vest the title of the property in the donee.” The terms of the receipt given would indicate that there was no intention of the testator to divest himself of the dominion and control of the bonds; and his statements, acts, and declarations, if they are admissible at all, as against the respondent, all tend to show that he never did intend to divest himself of the ownership of the bonds, or of the power to use and control them in any way he saw fit.
I am unable, therefore, to concur in the affirmance of this judgment.