I respectfully dissent from the majority opinion in this case. In my opinion the gift by the deceased, Mrs. Baxter, to her daughter, Mrs. Nippers, of the funds on “Time Deposit” in the Peoples Bank at Alamo was clearly and unequivocally an attempted testamentary disposition of practically all of her worldly goods.
To elaborate a little on the facts, Mrs. Baxter was about 91 years of age at the time she died on May 6, 1955. The $2,000 certificate of deposit represented practically all, if not all, of her assets immediately prior to her death.
The record shows that back as far as 1947 Mrs. Baxter was accustomed to carrying a “Time Deposit” in the Peoples Bank. These deposits seem to have increased gradually from year to year. Back about 1950, one or more of these certificates of deposit were issued in the name of Mrs. W. A. Nippers, the daughter, and Mrs. *726H. B. Baxter, the mother, jointly. Unquestionably this money belonged entirely to Mrs. Baxter.
Mrs. Baxter asked the banker if the effect of the certificate being written this way was not to give Mrs. Nippers joint control of her money. Upon being informed that it did Mrs. Baxter insisted that all fntnre certificates be changed and pnt in her name individually and payable to the order of Mrs. Baxter and payable on death to Mrs. Nippers. This indicates to me that Mrs. Baxter clearly wanted and intended to retain full control of her money up until the time of her death and that she intended for Mrs. Nippers, her daughter, to have control of the money only after the death of Mrs. Baxter.
The majority opinion simply accepts Mrs. Nippers’ “concession” that the transaction was not testamentary and does not consider the legality of the certificate of deposit as an attempted testamentary transaction at all.
I readily agree that the “Third Party Beneficiary Buie” as it relates to contracts is recognized in Tennessee. However, I do not think that such doctrine will be allowed by our Courts to short-circuit or avoid the positive statutes of our state relating to the administration of decedent estates and relating to the testamentary disposition of personal property.
The majority opinion apparently proceeds upon the proposition that since the certificate of deposit was in writing and expressly recited that the bank would pay the money to Mrs. Nippers on the death of Mrs. Baxter, that this constituted a contract between the bank and Mrs. Nippers which is enforceable by Mrs. Nippers against the bank. Of course, this is the true application of the third-party beneficiary rule.
*727However, this litigation is not between the bank and Mrs. Nippers because the bank has already admitted its liability and filed its bill of interpleader and paid the $2,000 in Court in full discharge of its liability under its contract. This present litigation is between those claiming as next of kin and distributees of the estate of Mrs. Baxter on the one hand and Mrs. Nippers on the other.
Even though Mrs. Nippers insists that she is entitled to the proceeds of the deposit by virtue of a contract, and the majority opinion so holds, yet it seems to me that in the broader view she must show that she is entitled to this money by some form of legal gift because admittedly the money formerly belonged to Mrs. Baxter and Mrs. Nippers herself has parted with no consideration for her right to this money. In simple terms, it appears that her mother gave her the money using a certificate of deposit as a medium and the bank as an agent in order to effectuate the gift.
As I understand the law there are three ways in which the owner of personal property can dispose of it by gift:'
(1) Grift inter vivos — To make a valid effective gift inter vivos, the owner must convey a present irrevocable interest in the property sought to be given to the donee and the owner must denude himself of all control over the property or interest therein sought to be given to the donee at the time of the gift. Figuers v. Sherrell, 181 Tenn. 87, 178 S. W. (2d) 629, 152 A. L. R. 420.
In the case at bar Mrs. Baxter expressly negated any idea of a gift inter vivos to Mrs. Nippers because she expressly charged the banker that future certificates of deposit should be changed so that Mrs. Baxter would have full control of the funds during her lifetime and *728that Mrs. Nippers would Rave no control until after the death of Mrs. Baxter.
(2) Gifts causa mortis — Gifts of this type are also in a sense inter vivos because a living donor and a living donee are indispensable to a valid donation. However, such gifts vary and are different from ordinary gifts inter vivos because the donor reserves the right of revocation. Prom 1 Pritchard on Wills and Estates (Phillips’ Edition) 1955, Section 474 at page 426 I quote as follows:
“* * * The elements essential to a complete gift are, however, the same, by whatever name the gift may be called; there must be a purpose to give; this purpose must be expressed in words or signs, and it must be executed by the actual delivery of the thing given to the donee or to some person for him. In the case of a gift inter vivos, the moment the gift is thus consummated it becomes absolute and irrevocable. A gift mortis causa differs from a gift inter vivos because it is ambulatory and revocable during the don- or’s life. In the case of a gift mortis causa, the gift must be executed precisely as required in the case of a gift inter vivos, and possession and title must pass to the donee. But it is subject to be defeated by the happening of any of the conditions subsequent which the law annexes to every donatio mor-tis causa; 1. The gift must be made under the apprehension of death from some present disease or other impending peril, and it becomes void by recovery from the disease or escape from the peril. 2. It is also revocable at any time by the act of the donor. 3. It becomes void by the death of the donee in the lifetime of the donor. 4. It is subject to the *729debts of the donor in case of a deficiency of assets; not becanse the gift is testamentary or in the nature of a. legacy, but because such is the condition an- . nexed to it, and it 'would otherwise be fraudulent as . to creditors.”
Mrs. Nippers, of course, makes no claim that she is entitled to the funds as a gift causa mortis because the attempted gift was made as far back as 1950; at a time when Mrs. Baxter was under no apprehension of death from any present disease or impending peril. ... , .
(3) Gift by will — By chapter 125 of the Public Acts of 1941 the‘Legislature of Tennessee changed the common law relating to the execution of wills of personal property by enacting what is known as the Uniform Law of Wills.- This law, now T. C. A. Section 32-104, provides that all wills, other than holographs or nuncupative wills, must be published and signed by the testator in the presence of two attesting and subscribing witnesses. Of course, the attempted gift in the instant case does not meet any of these requirements.
If the majority opinion should be upheld by the Supreme Court then it seems that there has come into existence an additional method of testamentary disposition of property; namely, by contract through a third party:
I see no legal difference in the gift to Mrs. Nippers by the present Certificate of Deposit than if the Certificate had gone further and said “payable to the order of Mrs. Baxter and on her death payable to the president of the bank who has agreed to pay the debts and burial expenses of Mrs. Baxter and the remainder, after compensation to himself in the amount of 10% of the amount of Certifi*730cate, Re will pay one-tMrd each to Mrs. Baxter's three children, X, Y, and Z.”
The only thing illegal I see about such a contract is that the Legislature of Tennessee by the Uniform Wills Act has provided an exclusive procedure which the owner of personal property must follow in order to dispose of property which such owner died seized and possessed of.
In conclusion, I am of the opinion that Mrs. Baxter had entered into a contract with the bank whereby the $2,000 would remain on deposit in the bank up until the time of Mrs. Baxter’s death and that upon the happening of that event the money be paid over directly to Mrs. Nippers, such a contract would have been valid and enforceable as a gift inter vivos by Mrs. Baxter to Mrs. Nippers even though the enjoyment of the gift would be delayed until after the death of Mrs. Baxter.
Or even further, it would seem that a contract between the bank and Mrs. Baxter whereby the bank would receive the money, pay the annual interest to Mrs. Baxter and pay the corpus over to Mrs. Nippers on the death of Mrs. Baxter would also have been valid provided that Mrs. Baxter did not reserve the right to withdraw any portion of the corpus during her lifetime.
The distinguishing determinative difference in the contracts above mentioned and in the certificate of deposit in the instant case is the full and complete control which Mrs. Baxter retained over the proceeds of this particular deposit. She had the right to transfer or give this deposit to anyone of her choosing at any time up until the very split second that death came upon her. I think that this certificate of deposit, a negotiable instrument, *731■would have been subject to execution by Mrs. Baxter’s creditors in ber lifetime and that from every standpoint sbe died tbe owner of tbis certificate of deposit. Hence, it was a part of tbe assets of ber estate.
True, some courts of other jurisdictions have upheld deposits payable to a named beneficiary on tbe death of tbe principal depositor. However, most of these cases involved deposits made in tbe joint names of tbe owner of tbe funds and a beneficiary with tbe right of survivor-ship. See 7 American Jurisprudence, Banks, Sections 430 through 434.
However, in our own case of Ferry v. Bryant et al., 19 Tenn. App. 612, 93 S. W. (2d) 344, 345, our Tennessee Court of Appeals held that where a father placed certain funds on deposit in tbe bank in tbe name of certain trustees for tbe benefit of bis daughter and to be delivered to ber upon bis death, but reserved tbe right to use said funds and did withdraw said funds during bis lifetime, that tbe gift was uncompleted and invalid. In that case Judge McAmis reannounoed tbe general rule of law which seems applicable to tbe case at bar and which is quoted as follows:
“ (1-3) It is elementary that there can be no gift of personal property inter vivos absent complete and unconditional delivery of tbe article either directly to tbe donee or to a trustee to act as agent for tbe donee. If delivery to a third party is merely for tbe purpose of delivery to tbe donee, tbe gift is not completed until tbe subject of tbe gift is actually delivered to tbe donee, and until that is done tbe donor may revoke the authority of bis agent to make delivery, and resume possession of tbe article. How*732ever, the rule is that where delivery is unconditionally made to a third person to act as agent or trustee for the donee, such delivery completes the gift. To constitute such a case the circumstances must show a full relinquishment of domination over the property to the trustee for the purpose of the trust, so that the trustee shall not be the agent of the donor, but shall act for the donee. Marshall v. Russell, 93 Tenn. 261, 266, 267, 25 S. W. 1070; Chandler v. Roddy, 163 Tenn. 338, 43 S. W. (2d) 397; Fly v. Woods, 13 Tenn. App. 310.”
I might add that one of the vices of permitting testamentary disposition of property without the formality of a will is clearly illustrated by the circumstances under which the certificate sued on by Mrs. Nippers was renewed. When Mrs. Nippers brought her mother, Mrs. Baxter, to the bank on May 25, 1954 to renew the certificate for the last time, the assistant cashier, Mrs. Cates, testified that she waited on Mrs. Baxter. She did not ask her any questions except if she wanted the renewal certificate made out “the same way.” Mrs. Cates testified that she remembered no other conversation with her and that she did not feel competent to say whether Mrs. Baxter was or was not of sound mind.
Upon the oral argument before the Court counsel for Mrs. Nippers insisted that this certificate of deposit was analogous to War Bonds issued during World War II and probably being issued at the present time by the federal government whereby the purchaser of said bonds could have them issued in the name of the purchaser with the right of the purchaser to cash them in at any *733time in Ms lifetime but payable on death of the pnrebaser to some other named beneficiary.
I recognize the analogy and am of the opinion that snch bonds constitute an exception to the laws of Tennessee relating to testamentary gifts and the administration of decedent estates. The answer is that the federal government now is definitely superior to state courts and that our state courts have recognized the right and prerogative of the federal government to issue and sell bonds under its own terms and provisions. Brown v. Vinson, 188 Tenn. 120, 216 S. W. (2d) 748, at page 749.
There may be a time when the Legislature of Tennessee will decide that it is to the public interest that the depositors in banks can legally name a beneficiary to receive said bank account upon the death of the depositor without the requirements of a will and still reserve to the depositor the full right to control, withdraw or assign any portion of said account during his lifetime. However, until the Legislature does so provide, I think that bank accounts, whether checking account or time deposits, over wMch the depositor retains full control up until the time of his death constitute assets of the estate of the depositor.
Therefore, I would reverse the decision of the Chancellor and decree that the proceeds of the certificate of deposit constituted part of the estate of Mrs. H. B. Baxter who died intestate.