Dougherty v. Moore

Robinson, J., delivered the opinion of the Court. This is a controversy in regard to the title to two funds, or sums of money, held on deposit by the Eutaw Savings Bank of Baltimore and the Savings Bank of Baltimore, and claimed respectively by the administrator of the wife and the administrator of the husband. McDonald, the husband, opened an account in the Eutaw Savings Bank in 1864, and running down to 1887, when he died. The account was opened in his own name, and so continued till the 19th of February, 1868, when the name of his wife was added; and thereafter the entry in the pass book of the Bank and in the ledger of the Bank read, ‘; Lawrence McDonald, “Sarah McDonald and the survivor, subject to the order of either.” On the 4th January, 1876, the following entry was also made: “In consideration of my natural love and affection for my wife, Sarah McDonald, 1 give to her all the money belonging to me credited or to be credited in this book, and I direct the same be paid to her, and her receipt shall be good for the same.” His “ Lawrence -j- McDonald. ” murk. ²⁵⁰ After these entries were made, McDonald continued to make deposits from time to time, and to draw money on account of the same as his wants or convenience required; the sum of six hundred dollars being drawn hy him two days only before he died.

His wife also drew money from time to time, upon her presenting the pass book to the Bank, and having the several amounts credited thereon as required hy the rules and regulations of the Bank. The husband and wife died on the same day, the wife surviving her husband little more than one hour. The question and the only question it seems to us is, whether there was a valid gift by the husband to his wife of the money held on deposit by the Bank. All agree that to constitute a valid gift between living parties, or gifts inter vivos, as they were distinguished by the civil law, there must he a delivery of the subject-matter of the gift, with the intent on the part of the donor to transfer the right of property to the donee, or to some one for his use.

The donor must renounce, and the donee must acquire the title and interest in the property given. So long as there is a locus pemtentiae in the donor, the right to change his mind, to modify, or revoke it, the gift is incomplete. As was said by Gtbbs, O. J., in Bunn vs. Markham, 7 Taunton, 214: “There is no case which decides that the donor may resume the possession and the donation continue.” Nor will the mere fact of possession in itself be sufficient, but it must appear that such possession was acquired with the consent of the donor, and with the intent 'on his part to relinquish all right and interest in the subject of the gift, and making it the property of the donee. These are familiar principles about which there can be no contention. “If-the thing be not capable,” says Chancellor Kent, “of actual delivery, there must be some act equivalent to ²⁵¹ it.' The donor must part not only with the possession, but with the dominion of the property. ” 2 Kent Comm., 439.

Here the subject of the gift is money on deposit in a savings Bank, and it is admitted there was no actual delivery of the money itself by the husband to the wife. If so, the. question then is whether the act or acts of the husband are in a legal sense equivalent to an actual delivery of the money. We shall not stop to consider whether an assignment in writing and