dissenting: I approve the sensible objectives of RSA 384:28-31, but I am unable to concur in the application of the statute made by the majority opinion to the record before us. Without again reciting the agreed facts, it appears clear to me that, considered with the briefs, they lead to certain inescapable conclusions.
The first is that Alice, during her lifetime, maintained full ownership of the account with an unqualified right to withdraw and use all the proceeds at any time. The plaintiff, in her behalf, so asserts in his brief, and the defendant makes no denial. There is not a scintilla of a suggestion in the defendant’s brief that she had any interest, by gift or otherwise, in the deposit while Alicje lived. Nor does the defendant claim that she had any right to withhold the bank book from Alice for any reason during Alice’s lifetime. On the contrary, the defendant even agrees in her brief that while alive, Alice had the right to “withdraw” and “collect” all the funds, and adds that “RSA 384:31 guarantees the right during life time . . . ” — which it does. It therefore appears conclusive to me that the plaintiff has sustained his burden of proving that Alice transferred no interest during her lifetime to the defendant.
The defendant does not dispute this conclusion. In the agreed facts and in her brief, she rests her case upon the sole ground that since she successfully withheld the book from Alice during the latter’s lifetime, the statute automatically awarded the proceeds to her upon Alice’s death. That such an interpretation of RSA ch. 384 would enable an obdurate possessor of a joint bank book to defeat rights, which section 31 of the statute carefully preserved to the depositor during her lifetime, and would also encourage *392fraud and other inequitable conduct, is too plain to require argument. The majority opinion recognizes that a wrongful withholding of the joint bank book does not cause the account to become subject to the operation of the statute. Harrington v. Emmerman, 186 F. 2d 757 (D.C. Cir. 1950). It also holds that Alice did “all that it was possible for her to do” to recover the book. See John Hancock Insurance Co. v. Sheridan, 104 N. H. 216, 218.
Viewing the record in its entirety, I find no warrant for the pivotal assertion in the majority opinion that “the agreed facts shed no light on the question of whether Alice, had she 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.” Indeed, it seems to me the record makes it abundantly plain that Alice had such a right and, as previously stated, that her burden of proving it under RSA ch. 384 is firmly established.
In summary, the majority opinion gratuitously suggests to the defendant that she might have had a right to the deposit or a portion of it during Alice’s lifetime. Such a right she not only never has claimed, but has admitted she did not possess. I believe that the result reached by the majority opinion is without support in the record.
I would give judgment for the plaintiff.