livery at the time of the gift, if the property is then in the possession of the donee, and the gift is supported by long acquiescence of the donor, or other entirely satisfactory evidence. This court so held in Wing v. Merchant, 57 Me. 383, and the jury were so instructed in this case, and the defendant had the benefit of the instruction. But the question we are now considering is not whether a gift inter vivos can be sustained without a distinct act of delivery, but whether such a relaxation of the law can be allowed in the case of a gift causa mortis. We think not. Reason and the weight of authority are opposed to such a relaxation. Hatch v. Atkinson, 56 Me. 326; Lane v. Lane, 76 Me. 521; Parcher v. Savings Inst., 78 Me. 470, 7 Atl. Rep. 266; Dunbar v. Dunbar, 80 Me. 152, 13 Atl. Rep. 578; Miller v. Jeffress, 4 Grat. 472; French v. Raymond, 39 Vt. 623; Cutting v. Gilman, 41 N. H. 147; Delmotte v. Taylor, 1 Redf. Sur. 417; Egerton v. Egerton, 17 N. J. Eq. 419; Kenney v. Public Adm'r, 2 Bradf. Sur. 319; 2 Kent, Comm. (10th Ed.) 602, and note; Dickeschied v. Bank, 28 W. Va. 340; Walsh's Appeal, (Pa.) 15 Atl. Rep. 470, and note.

It is the opinion of the court that the gift of a savings bank book causa mortis, to be valid, must be accompanied by an actual delivery of the book from the donor to the donee, or to some one for the donee, and that the delivery must be made for the express purpose of consummating the gift, and that a previous and continuing possession by the donee is not sufficient; and that in this and in all particulars the rulings in the court below were correct and that no cause exists for granting a new trial. Motion and exceptions overruled. PETERS, C. J., and DANFORTH, VIRGIN, EMERY, and HASKELL, JJ., concurred.

JONES v. WEAKLEY.

99 Ala. 441; 12 South. 420. 1893.

Appeal from circuit court, Jefferson county; James B. Head, Judge.

Action by John H. Jones against S. D. Weakley, as adminis

trator of the estate of Nat Jenkins, deceased, to recover money had and received. From a judgment for defendant, plaintiff appeals. Affirmed.

STONE, C. J. This case was tried by the court, without a jury, and presents a single question: Does the testimony prove that the deceased, Nat Jenkins, made a valid, executed gift causa mortis to John H. Jones, the plaintiff, of the money he had on deposit with the First National Bank of Birmingham? There is no material conflict in the testimony. The first National Bank of Birmingham was a bank of issue, discount, and deposit, and was not a savings bank. Nat Jenkins was a colored man, was lying seriously wounded from a railroad disaster, believed he would die of his wounds, and did in fact die therefrom two days afterwards. He had a deposit account with the First National Bank. He had in his possession a pass book, in which was an account with the caption, "Dr. The First National Bank, in acc't with Nat Jenkins, Cr." In this pass book were items of debit and credit, but the account was not balanced. There was in fact a balance due the depositor of near $900. Jones was a nephew of Jenkins, and was visiting the latter as he lay in the hospital, suffering from the effect of his injuries. He gave Jones the key to his box, and requested him to go and bring to him his pass book and other articles. On the next day, and in the presence of witnesses, Jenkins, after stating he was going to die, handed to plaintiff, Jones, the bank book, keys, and papers, and said to him: "Take this book. I give you this money, and all I have gct. Go and get it. I don't want the old man or any of his folks to have anything that I have got. All I want is for you to see that I am decently buried." Jones took possession of the tendered pass book, keys, and papers, and retained them. After Weakley was appointed administrator, he checked the money out of the bank, and this action was brought by Jones to recover the same as so much money had and received for his use.

The general rule is that to constitute a valid gift, whether inter vivos or causa mortis, the donor must part with dominion over the thing attempted to be given; must do the act or acts which are, or appear to be, the most pronounced and decisive of the intention to part with possession and control; and the acts must of themselves amount to a parting with the possession

and control. Authorities on this question are very abundant, and they cover almost every conceivable phase of the question. McHugh v. O'Connor, 91 Ala. 243, 9 South. Rep. 165; Dacus v. Streety, 59 Ala. 183, 8 Amer. & Eng. Enc. Law, p. 1341 et seq., and the numerous authorities cited by counsel.

The direct question presented by this record has been many times considered. A pass book issued by a savings bank, it is held, rests on a peculiar footing. Such book is the record of the customer's account, and its production authorizes control of the deposit. Like the key of a locked box, its delivery is treated as a delivery of all it contains. It follows that the delivery in this case, accompanied by the declared intention to give, if the deposit had been in a savings bank, would have been a valid gift causa mortis of the money on deposit, of which it was the evidence. It would furnish the key to the locked contents. 8 Amer. & Eng. Enc. Law, 1324, 1325; Pierce v. Bank, 129 Mass. 425; Curtis v. Bank, 77 Me. 151; Hill v. Stevenson, 63 Me. 364; Camp's Appeal, 36 Conn. 88. Not so, however, with the present book. The First National Bank, as we have seen, was a bank of issue, discount, and deposit. The money could be withdrawn from the bank, not by the production of the pass book, but on the check of the depositor. It was not the best delivery available under the circumstances. It did not give dominion and control of the money, the thing claimed to have been given,—for the money was as subject to check without the production of the book as with it. Thomas' Adm'r v. Lewis (Va.), 15 S. E. Rep. 389, Dole v. Lincoln, 31 Me. 422; Hillebrant v. Brewer, 6 Tex. 45; Noble v. Smith, 2 Johns. 52; Jones v. Brown, 34 N. H. 445; Beak v. Beak, L. R. 13 Eq. 489; 8 Amer. & Eng. Enc. Law, p. 1345, note 2. There is no error in the record.

Affirmed.

RIDDEN v. THRALL ET AL.

125 N. Y. 572, 26 N. E. 627. 1891.

Appeal from supreme court, general term, second department. Action by James N. Ridden against James H. Thrall, as administrator, etc., of Charles H. Edwards, deceased, and another,

to determine the validity of an alleged gift causa mortis made to plaintiff by defendant's decedent. From a judgment affirming a judgment in plaintiff's favor, defendant appeals.

EARL, J. On the 1st day of October, 1888, Charles H. Edwards had money on deposit in savings banks, and kept the savings banks books in a tin box, and on that day he delivered the tin box to the plaintiff, informing him that he was about to go to St. Luke's hospital in the city of New York to have an operation performed for hernia, and that he was apprehensive he might die from the results of the operation, and said to him that if he did not return he gave him the box and its contents. He went to the hospital on the next day, and on the 5th day of October an operation was there performed for inguinal hernia. The operation was not dangerous, and was apparently successful. But on the 16th day of October he suddenly died from heart disease, with which he was afflicted when he went to the hospital. He had not returned from the hospital, and had not recovered from the disease for which the operation was performed, nor from the results of the operation. The defendants claim that the circumstances were such that a valid gift was not made, mainly because Edwards did not die from the disease on account of which he went to the hospital, and from which he apprehended death might ensue. The case is novel in some of its features, and interesting. I have carefully considered the able argument submitted on behalf of the appellants, and am satisfied that the judgments of the courts below upholding the gift are right.

The gift was sufficiently proved. The facts which took place at the time of the gift on the 1st day of October were testified to by the plaintiff's wife. There were 16 bank-books, and they represented about $40,000 of deposits. Such a gift should be proved by very plain and satisfactory evidence, and, if the case depended upon the evidence of the wife alone, any court might well hesitate to uphold the gift. But on the previous day (September 30th) Edwards wrote the following letter addressed to the plaintiff: "Friend Jim: Should I not survive from the effects of the operation about to be performed on me at St. Luke's Hospital, this is my last will and request, that you will take charge of my body, and have it placed in my family plot

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in Greenwood Cemetery; and also that you will take full charge of all my personal effects of every kind, and to have and hold the same unto yourself, your heirs and assigns, forever. You will find my papers and all my accounts in the box. C. H. EDWARDS." This was inclosed in an unsealed envelope, addressed to the plaintiff, and placed by Edwards in the bureau in the room occupied by him in plaintiff's house, where it was found about a week after his burial by plaintiff's wife and his aunt, both of whom proved the handwriting to be that of the donor. The genuineness of this letter was not disputed upon the trial. While, standing alone, it would not have been sufficient to establish the gift, it furnishes strong confirmation of the evidence of plaintiff's wife as to the gift, and leaves no reason to doubt that it was made as she testified. It was competent as corroborating evidence, just as the oral or written declarations of the donor previously made would have been, showing the intention to give, and thus corroborating the evidence as to the actual gift subsequently made. I have found no authority condemning such evidence. In all cases where probate of a will is contested on the ground of undue influence, fraud, incompetency, or forgery, the previous declarations or statements, in any form, of the testator, showing an intention in harmony with the instrument offered for probate, have always been held competent, not as sufficient, standing alone, but as corroborating the other evidence offered by the proponent.

The gift was consummated by the delivery of the books, and no other formality was needed to constitute the actual delivery of the bank deposits needful to vest the possession and title in the donee. In savings banks in this state such deposit books are issued as evidence of the indebtedness of the banks. Withdrawals of deposits are entered in the same books, so that the deposit book always, with the addition of any interest, shows the actual state of the accounts between the depositor and the bank, and the whole indebtedness of the bank. It answers the same purpose in the case of a savings bank that is answered by a certificate of deposit in the case of other banks. The decisions are not entirely harmonious as to the sufficiency of the mere delivery of such deposit books to constitute a valid gift, either inter vivos or causa mortis. But the general rule in England and in this