The sole claim of the defendant Harry Eranosian as stated in his brief is that he was given the deposit in the plaintiff bank by a writing signed by his brother Arakel on July 31, 1926. Our problem therefore is to determine whether this writing in the light of the surrounding circumstances (Pettee v. Chapter, 86 N. H. 419, 423, 427) vested a present interest in Harry. There are two ways in which he could have acquired a present interest, one by gift inter vivos and the other by contract.
As to the first it must be noted at the outset that the claimant Harry has the burden of proving all the elements of a valid gift. *19Dover &c. Bank v. Tobin, 86 N. H. 209. These as often stated are a “manifest intention of the donor to give” and an unconditional delivery and acceptance of the thing given. Dover &c. Bank v. Tobin, supra, 210. It is also our law 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 Savings Bank v. McMullen, 88 N. H. 123, 126.
In applying these principles to the facts we learn first, as bearing on the deceased’s intent that he kept and apparently intended to keep complete control over the deposit at all times by holding the pass book. It must be assumed he knew what he was doing because he had signed an agreement with the bank on opening his account to abide by its rules, one of which was that no one could withdraw money without the pass book. Next, he never procured Harry’s signature though the writing plainly contemplated this as the final step in completing the agreement. The twenty odd years which elapsed between the time he signed the writing and the date of his death appears to have given ample opportunity to do this if he so desired. Again, he alone made all deposits and withdrawals, conducted all the transactions with the bank and there is no evidence that Harry, separated from the scene by thousands of miles, even knew of the arrangement.
Turning to the probate of his estate we find all his assets were cash and amounted to $9,255.16 of which $6,350.95 was represented by the disputed bank book and the rest by $2,877.21 deposited in the Second National Bank of Nashua and $27 in money on hand. In his will dated November 1, 1947, less than a year before his death, he gave $3,000 outright to persons and institutions other than his brothers and directed the remainder to be divided equally between the complainant and his other brother Aram. If he intended Harry to receive the entire disputed fund this would leave nothing for Aram although the will indicates he wished to treat them equally. It appears on the whole that the facts so far from showing the probabilities to be that Arakel intended a gift inter vivos indicate the contrary. In any event they fall far short of sustaining the claimant’s burden of proof on this issue. Dover &c. Bank v. Tobin, supra, 210.
We turn now to the question whether the claimant gained a present interest under the agreement between Arakel and the bank. It appears he did not. Arakel agreed with the bank to be bound *20by its by-laws one of which was that the bank book must be presented for any withdrawal. Harry never had the bank book, never presented it nor withdrew any money. There was no agreement that Harry should have any interest in money not withdrawn. It appears that this writing, to which Arakel never bothered to get Harry’s signature, really goes no further than the agreement in the case of Packard v. Foster, 95 N. H. 47. It protected the bank in case of withdrawal to the same extent as the statute (R. L., c. 309, s. 20) and no more since it vested no right of withdrawal except upon presentation of the bank book. New Hampshire Savings Bank v. McMullen, supra; Dover &c. Bank v. Tobin, supra, 211.
The case of Ibey v. Ibey, 93 N. H. 434, cited by the claimant in support of his claim that he gained a present interest by the writing is clearly distinguishable. There the contracts for the benefit of the third person concerned United States Savings Bonds. They were fully executed and as the opinion states (p. 435) "were contracts with the United States for the benefit of third parties and as such entirely valid” without personal delivery. An examination of the defendant’s brief in this case (505 Briefs & Cases 520) shows that the bonds on their face were subject to department regulations that they might not be reissued during the lifetime of the beneficiary to eliminate his. name and that they should be paid only to him on the death of the registered owner. He therefore acquired a present interest independent of possession of the document of title which is not so here. It would serve no useful purpose to review decisions in other states, such as Vaughan v. Millikin National Bank, 263 Ill. App. 301, where the facts, the statutes and apparently the policies differ from ours. See Packard v. Foster, 95 N. H. 47, 50. It appears that under our law we have here neither a gift inter vivos nor a contract passing a present interest (Packard v. Foster, supra) and the order must be
Decree for the executrix.
Kenison, J., dissented: the others concurred.