In considering the questions raised by this appeal,, it should be borne in mind that there was nothing irregular in the manner in which the learned trial justice disposed of this case at the circuit; for, although it was originally an action at law, the order interpleading the defendant transformed it into a suit in equity, and consequently neither party was entitled, as a matter of right, to a trial by jury. The court might have submitted to the jury, which, was impaneled, any or all of the traversed questions of fact, but it was under no obligation to do so, nor to adopt the conclusions of the jury had it been thus submitted. Clark v. Mosher, 107 N. Y. 118, 14 N. E. 96. With this suggestion for a guide, it is difficult to discover wherein any error has been committed which requires a reversal of the judgment and order appealed from.
*1008The action appears to have been tried upon the theory that the check and bank book, which were found in the defendant’s possession after the death of the intestate, were sufficient evidence of a gift inter vivos of the moneys deposited in the bank, although no such issue was tendered by the answer. But the mere possession of the book, or of the book and check, is but one of several elements which are esr ntial to the establishment of the defendant’s contention. There must have existed an intention upon the part of the intestate to part absolutely with her property, and such intention must have been consummated by an actual delivery to the donee. Harris v. Clark, 3 N. Y. 93; Beaver v. Beaver, 137 N. Y. 59, 32 N. E. 998; Govin v. De Miranda, 79 Hun, 286, 29 N. Y. Supp. 345. In the Ridden Case, 125 N. Y. 572, 26 N. E. 627, which is cited and apparently relied upon by the defendant’s counsel, there was not only convincing proof of an intention upon the part of the donor to divest himself of all right and title to the subject of the gift, but such intention was accompanied by an actual and formal delivery. Neither one of these elements appears to be present in this case, and therefore the learned trial justice was undoubtedly correct in the conclusion he reached, that the defendant failed to fulfill the obligation which the law imposes upon him of establishing his claim to these moneys by evidence which shall be entirely satisfactory in its character. Upon the argument of the appeal, the learned counsel sought to supply this very obvious defect in his case by insisting that the possession by the defendant of the intestate’s check for the amount of her deposit raises the presumption that it was given for a good consideration, and consequently that it operated as a complete and valid transfer of the sum of money mentioned therein. But the rule thus invoked has its limitations, and very slight circumstances will serve to repel any presumption thus created. That it was satisfactorily met in this case, and that the learned trial justice was fully supported in his finding of fact and conclusions of law, can be easily demonstrated. Perhaps it would be a sufficient answer to the defendant’s present contention to say that it is now' urged upon the attention of the court for the first time. As has already been suggested, the trial was conducted upon an entirely different theory; and, when the case was taken from the consideration of the jury, the only request made by the counsel was that the question of the delivery of the check and bank book might be submitted, and it was not even suggested that there was any other issue to be considered. But, had this not been the case, the fact that the check was signed more than a month prior to the death of the intestate, and was not presented at the bank until several months after her death, is sufficient to justify the trial court in concluding that it was not received in the usual course of business and for a valuable consideration. Stimson v. Vroman, 99 N. Y. 74, 1 N. E. 147
The judgment and order should therefore be affirmed. All concur.