The plaintiff concedes that he cannot recover on the ground of a gift inter vivos or causa mortis, but he claims that the act of the parties was a placing of money on deposit, in their joint names, with the intent that the sum remaining should go to the survivor; and he cites Marshal v. Crutwell, L. R. 20 Eq. 328, and Batstone v. Salter, L. R. 10 Ch. App. 431, in support of this view. Those cases are different in principle from this. In Marshal v. Crutwell the money was deposited in the bank upon the understanding that it was to be drawn by both parties, and the balance remaining at the death of either was to go to the survivor. Here the referee finds that neither intended to give up the right of control of their respective deposits during their respective lives. Each party retained absolute control over his deposit during life, but each expressed the desire that the survivor should have the balance remaining at the decease of the other. It was a testamentary disposition of the balance remaining at the decease, but it lacked the requisite formalities of execution to make it effectual. Bartlett v. Remington, 59 N.H. 364, 366.
Another claim of the plaintiff is, that he can recover on the ground of a promise for a promise. The promise, if any, was in substance, — "I bequeath to you the balance of my deposit which I do not expend during my life, if you survive me, in consideration of your bequeathing to me the balance of your deposit which you do not expend during your life, if I survive you." There was *Page 436 nothing in this agreement which prevented either party from withdrawing his deposit, and making any other disposition of the money that suited his convenience or pleasure. No liability would have been incurred if it had been done. The mutuality essential to make a promise a sufficient consideration for a promise is wanting, for neither promise was absolute. Each of the parties reserved the right to disable himself to perform his promise. Either party could withdraw all his deposits, and leave the other without any consideration for his promise. It is said that a voidable promise is a good consideration for a promise; but this is not the general rule. It is true in respect to the contracts or promises of infants made with persons of full age. 1 Par. Con. 451, 452. This case falls within the principle of Cutting v. Gilman, 41 N.H. 147, 153; Reed v. Spaulding,42 N.H. 119; Craig v. Kittredge, 46 N.H. 57; and Bartlett v. Remington,59 N.H. 364.
Another position taken by the plaintiff is, that the agreement and acts of the parties created a trust on the part of each in favor of the other; but the difficulty with this view is, that neither ever parted with the control of his deposit, and never intended to do so. On the contrary, each retained absolute control, and the unconditional right to make any different disposition of the funds which he chose. These facts are inconsistent with the position that a trust was created. To create a trust, each of the parties must have been deprived of the power of revocation and control. Bartlett v. Remington, supra; Gerrish v. New Bedford Savings Inst., 128 Mass. 159; Urann v. Coates, 109 Mass. 581; Ray v. Simmons, 11 R. I. 266; Stone v. Bishop, 4 Cliff. 593.
Nor was the act of the parties a reducing to possession of the property of the wife by the husband. The husband exercised no control over the fund in the lifetime of the wife, and never intended to do it. It was not only necessary that he should reduce it to his possession, but that there should be coupled with this an intention to make it his own. Hall v. Young,37 N.H. 134; Hoyt v. White, 46 N.H. 45; George v. Cutting, 46 N.H. 130, and authorities passim. F. B. never having parted with the possession and control of her deposit, could dispose of it by her will.
Judgment for the defendant.
CLARK, J., did not sit: the others concurred.