On rehearing. After the foregoing opinion was filed, the plaintiff moved for rehearing as to account 3584, waiving any question affecting account 9624. The motion was granted, and arguments were heard on February 3,1954.
Duncan, J.The essence of the plaintiff’s position on rehearing is contained in his statement that he relies upon no “theory of gift, with the attendant requirement of delivery of possession of the [account] book,” but rather “on the contract which takes the place of that requirement.” Malone v. Walsh, 315 Mass. 484, 486, is relied upon for the propositions that: “Delivery of the bank book would not be essential since the contract takes the place of the delivery ordinarily required. . . . Furthermore, a *391transfer of this nature is not a gift of the deposit as such, but rather a gift of the interest therein created by the contract.”
The argument is made that the plaintiff, with the decedent, was a party to a contract with the bank by which he acquired immediate rights in the account, now entitling him, as the survivor, to require payment of the account. In support of this contention, the plaintiff emphasizes the fact that the records of the bank showed that the account was labeled “joint account, either or the survivor in the whole,” and that the agreed statement of facts recites that the plaintiff’s name was entered on the account book with the decedent’s “so that either . . . could withdraw funds ...”
We have no difficulty in concluding that the arrangement made by the decedent with the bank obligated the bank to permit withdrawal from the account by the plaintiff provided he presented the account book as required by its rules. The real question in issue is what were the respective rights of the decedent and the plaintiff inter se, after the arrangements made with the bank were completed. We find in the facts of the case nothing which serves to establish a beneficial interest in the plaintiff.
It is settled law in this jurisdiction that “a deposit by one in the name of himself or another, or the survivor, is unavailing in and of itself to give the other any ownership or interest in the account.” New Hampshire Sav. Bank v. McMullen, 88 N. H. 123, 126; Nashua Trust Co. v. Mosgofian, 97 N. H. 17, 19. This is because the action of the depositor is an equivocal act. “It is apparent that any one of several conclusions as to the intention of the decedent might be reached. The interest sought to be conferred . . . could be ... a present interest or one to take effect only upon the death of the donor.” Burns v. Nolette, 83 N. H. 489, 491. If it was the latter, the arrangement was “testamentary in character, and void under the statute of wills.” Id., 492; Dover &c. Bank v. Tobin, 86 N. H. 209, 211. If the former, but the decedent retained “a right ... to the funds withdrawn by the donee,” there was no such “divesting of the donor’s control” as would establish a valid transfer of ownership. Burns v. Nolette, supra, 492. A transfer or creation of equal power to draw from the fund “and appropriate the money withdrawn” is what must be shown. Id., 494, (Emphasis supplied). The burden of overcoming the “presumption in this jurisdiction against an intention to create joint interests in personal property” is upon the plaintiff. Dover &c. Bank v. Tobin, supra, 210.
*392If in fact it was the decedent’s intention to confer immediate beneficial rights upon the plaintiff, and not to make a testamentary disposition or merely establish a “convenience account” (see 2 Am. Law of Property, s. 6.4; New Hampshire Sav. Bank v. McMullen, supra, 126), evidence of that intention must appear, before the plaintiff can prevail. The agreement of the parties that there was a purpose to enable either the decedent or the plaintiff to withdraw the funds, and the evidence that there was a “new contract to pay 'to either or survivor’ the balance then shown on the passbook” (Connolly v. Bank, 92 N. H. 89, 92), fall short of demonstrating a right in the plaintiff to “appropriate the money withdrawn.” Burns v. Nolette, supra. The plaintiff’s case lacks evidence of an “expressed intent of the [decedent] that the [plaintiff-] should receive the beneficial performance [of the bank’s promise] as his gift.” 4 Corbin on Contracts 87.
The agreement between the bank on the one hand, and the plaintiff and the decedent on the other could not be found to go beyond the more detailed agreement in writing considered in Nashua Trust Co. v. Mosgofian, 97 N. H. 17, supra. It would have protected the bank in making payment, as would R. L., c. 309, s. 20. It entitled the plaintiff to withdraw the funds by presenting the account book. But there is no evidence of any understanding between the plaintiff and the decedent that the former should be entitled to withdraw and appropriate the funds to his own use, or that he should have any presently vested interest, entitling him to either immediate or future enjoyment of the fund, which might support a demand for the account book as an incident to his rights.
The circumstance that the plaintiff resided and continued to reside in Canada, which he relies upon to show that a “convenience account” was not intended, suggests fully as much that he was not expected to draw upon the account in his own behalf during the decedent’s lifetime.
No circumstance points to any understanding that as between the plaintiff and the decedent their rights in the deposit became or were intended to be equal. There was no assignment of any rights by the decedent, and no indication that the bank’s promise to pay to the plaintiff was for his benefit and not the decedent’s. The equivocation implicit in the bare form of the account is unresolved by the terms of any contract shown. The reality of that equivocation may be illustrated by the conclusion reached *393in a note in 53 Col. L. Rev. 103, 116: “The best way to remedy this situation would be legislative remodelling of the entire law of donative bank accounts. There should be a separate type of bank deposit book, stating succinctly the effect to be given the deposit, both during the life of the depositor and after his death, Forms will be needed for at least five types of accounts . . . .”
February 18, 1954.The recently enacted provisions of Laws 1953, c. 162, were designed to eliminate any question of the right of the survivor of two persons named upon an account such as this one, to ownership and payment of the account “upon the death of either of said persons.” They do not apply to this case since the decedent died on June 20, 1951. For the future, accounts governed by this statute are unlikely to present the problems which confronted the plaintiff in this action.
Former result affirmed.
Kenison, C. J., concurred for the reason stated in the original opinion.