(dissenting).
I respectfully dissent. I cannot agree that the evidence supports a theory of recovery on a third party beneficiary contract. The evidence fails to show a completed contract between Mrs. Lutz and the Gibraltar Savings Association. Mrs. Lutz, no doubt, when she called Mr. King over the telephone, had a desire to open three savings accounts of $5,000 each, one in the name of Patrick M. Wendland, one in the name of Father Thomas A. Wendland and one in the name of E. W. Quilter. No doubt, Mrs. Lutz intended to give these parties $5,000 each at her death. Mr. King testified when asked to tell the Court what she said she wanted, as follows:
“Yes. She said she had some money and she wanted to open three new accounts. She wanted to put her niece and three nephews on these accounts. She wanted $5,000 in each account. She wanted to be able to get the dividends on it just like she did on her others until her death. At that time she wanted the money in these accounts to go to her niece and nephews.” [Emphasis added.]
Whether Mrs. Lutz changed her mind or not, the fact remains that she knew from information obtained from Mr. King that her niece and nephews could not get the funds and that the joint account would not be recognized by the Savings Association as long as she kept control of the passbooks and the signature cards. Mrs. Lutz chose to establish a joint account but she did not complete the contract with the Savings Association. She never at any time relinquished control of the funds. Her acts prevented the respondents from withdrawing the funds during her lifetime. The respondents never acquired any title to the funds in the Savings Association during her lifetime, hence, at her death the funds belonged to the Estate of Mrs. Lutz. Mrs. Lutz was informed by Mr. King as to what was necessary to complete the contract with the Savings Association. Mr. King testified that he told Mrs. Lutz that it was necessary that the signature cards be signed by her and also by the other named parties and the cards returned to Gibraltar. Mrs. Lutz, one of the parties to the so-called contract, stopped short of completing her plans to leave the money as she first intended. The respondents are no more entitled to the money than if Mrs. Lutz had said she intended to provide in her will that her niece and nephews should receive $5,000 each, and then failed to make such provision. Mr. King testified to additional facts showing that the respondents *339are without an enforceable contract and that Mrs. Lutz never relinquished control of the funds. He testified that if the respondents had, prior to Mrs. Lutz’s death, come to him asking to withdraw funds from any of the accounts in question without the passbook they would not have paid any of the funds to them; that Gibraltar Savings Association requires that a signature card be signed by a person who attempts to withdraw funds from that Association; that the Association also requires that a holder of an account with the Association have a passbook before they will pay out funds to them; and that when a person identifies himself as a joint tenant but is without a passbook Gibraltar will not pay over funds to that person. This is a policy Gibraltar stands firm on. The fact that the recitations in the passbooks and the signature cards clearly express an intention to vest absolute right to ownership of the funds is no evidence that title vested, since Mrs. Lutz did not complete the contract by delivering the passbooks and signature cards. In view of the fact that Mrs. Lutz was led to believe that the contract would not be complete until the passbooks and signature cards were delivered, this Court should not hold that Mrs. Lutz had completed a contract with the Savings Association.
The Court is extending the Krueger doctrine entirely too far in this case. The result in the Krueger case was reached because of its particular facts. In that case this Court held that the evidence “here does not embrace the terms of such a contract as the one made with the government in Edds v. Mitchell [143 Tex. 307, 184 S.W.2d 823, 158 A.L.R. 470] nor that made with the savings and loan association in Davis v. East Texas [163 Tex. 361, 354 S.W.2d 926], nor does it lie within the provisions of § 46 of the Probate Code.” In speaking of the certificate in Krueger, the Court went on to say “[i]n our opinion the recitation falls short of expressing a clear intention to vest absolute right of the ownership of the funds in the survivor.” The Court continued, saying that “[t]he phrase ‘payable to the survivor’ is not tantamount to the provision that ‘the certificate is held by them as joint tenants with the right of survivorship’.” There can be no doubt that the Court was of the belief that the evidence discussed up to that point in the opinion did not of itself show a completed contract. However, in Krueger, there was the additional fact that a receipt card was delivered to the savings association, whereas in the present case the passbooks and signature cards were not delivered. In Krueger, this Court gave great weight to the language appearing on the receipt card. The Court said:
“However, the language appearing on this receipt card does serve to vest in Mrs. Krueger some present interest in and control over the certificate as well as the contractual right to possession of the proceeds as survivor.” [Emphasis added.]
I can understand the holding in Krueger because the “receipt card” upon which the Court relied was actually delivered to the savings association. Therefore, it was not illogical to conclude that all of the evidence, including the “receipt card,” proved a completed contract. As I read the Krueger opinion, if the “receipt card” had not been delivered, this Court would have reached a different result. In the present case, the signature cards were not delivered to the Savings Association, nor were the passbooks delivered to the niece and nephews. In Krueger, without the delivery of the “receipt card,” this Court would not have held that a presumption had been created that there was an intention on the part of the purchaser of the certificate to vest in Mrs. Krueger a present interest in and control over the certificate.
I would reverse the judgments of the courts below and render judgment for the petitioner.
CALVERT, C. J., and POPE, J., join in this dissent.