The account involved was established by Alice F. Hughes July 8, 1955, and was made joint with Helen M. Timmins on October 11, 1955. All monies therein at the death of Alice, July 8, 1956, had been contributed by her. Helen had possession of the bank book at the time of Alice’s death and for *465some time prior thereto. When Helen refused to give up the book at her request, Alice attached the account on May 4, 1956, then again on June 25, 1956. Under date of May 4, 1956, Alice executed a withdrawal order for the whole account which was filed with the Strafford Savings Bank, holder of the deposit.
The agreed statement of facts in Brennan v. Timmins, 104 N. H. 384, which can be referred to for other details, sets out the claims of the parties on the transfer of questions of law arising from the agreed facts to be as follows:
“The basis on which the plaintiff claims the account is that the account was the property of Alice F. Hughes during her lifetime, and that during that lifetime she revoked the joint tenancy nature of the bank account, so that on her death it became a part of her estate.”
“The defendant claims that the bank account remained in joint tenancy despite the efforts of Alice F. Hughes to terminate the joint tenancy, and that on the death of Alice F. Hughes it became the property of Helen M. Timmins by virtue of RSA 384: 28-31.”
On remand, when ruling on plaintiff’s motion for judgment, the Trial Court stated that the case was originally submitted “on defendant’s definite and unequivocal assertion that reliance was had on the statute [RSA 384:28, 31] and no issues of fact were in controversy . . . The sole questions at issue were centered on whether or not, as a matter of law, the actions of Alice in bringing suit operated to sever the joint account and whether or not the holding of the account until her death automatically passed the account to Helen.”
In ruling on the issues raised by the agreed statement of facts of the parties (which agreement is still in effect), this court held that by virtue of RSA 384:28 Helen Timmins as the surviving joint tenant was entitled to the balance in the account unless “it is found that the defendant Helen’s refusal to give up the account book on demand of Alice was without right or justification, so as to constitute wrongful or inequitable conduct upon the part of Helen, and that but for this conduct Alice could and would have withdrawn the entire account, and thereafter would have been entitled to the beneficial enjoyment of its proceeds.” Brennan v. Timmins, 104 N. H. 384, 390.
The majority of this court further stated therein that “the agreed facts shed no light on the question of whether Alice, had *466she succeeded in her attempt to collect the account, would have been entitled as against the defendant to the beneficial use and enjoyment of the proceeds of the account after withdrawal, free from any right or interest of the defendant.” Id., 390. The opinion concluded by declaring that the burden is on the plaintiff to prove that “Alice was entitled during her lifetime to withdraw and collect the account and to appropriate the proceeds to her own use and would have done so but for the wrongful or inequitable conduct on the part of Helen in withholding the passbook.” Id., 391.
In other words, this court decided that, as contended by the defendant, by virtue of RSA 384:28 the account standing “in the names of two persons [Alice and Helen] payable to either of such persons, and payable to the survivor of them, the said account . . . upon the death of either of said persons . . . [became] the property of and [shall] be paid in accordance with its terms to the survivor.” However, the representative of the deceased joint tenant Alice would be entitled to the funds if he proved that the account would not have been so “maintained” at Alice’s decease but for the wrongful or inequitable conduct of the survivor Helen which prevented the deceased from appropriating the funds to her own use, and that, had she succeeded in her attempt to collect the account, Alice would have been entitled as against Helen to the beneficial use and enjoyment of the proceeds free from any right or interest of Helen. Brennan v. Timmins, 104 N. H. 384, 390.
A majority of the Court reiterates now what it stated unequivocally in the prior opinion that the agreed facts “shed no light” {Id., 390) on the above issues, which the plaintiff must prove to entitle him to a judgment. Presently there is no evidence in the record establishing these issues in favor of the plaintiff. Defendant has a right to present testimony on these matters before they are determined. MacNeil v. Lathe, 102 N. H. 439, 443. Consequently we rule as a matter of law that it was error for the Trial Court to grant plaintiff’s motion for judgment. Bull v. Gowing, 85 N. H. 483, 486; Phillips Exeter Academy v. Gleason, 103 N. H. 197, 201.
Exception sustained.
Blandin, J., dissented; the others concurred.