pressly sanctioned and encouraged, under proper regulations by the English Savings Bank statutes.1 The foregoing are but a few of the most common desires inducing accounts in this trust form. Coming now to the legal principles involved in the determination of these cases, the common law distinction between a gratuitous declaration of trust in and a gift of personal property, should be borne clearly in mind. To make a valid gift in the absence of the deed, it is necessary that the possession pass to the donee. Unless the possession pass, nothing does; while if the possession pass, the legal title passes with it. No matter how strong and distinct the intention to pass the legal title is, without delivery, actual or constructive, of the subject-matter to the donee, neither the title nor anything else passes. For the donee to obtain a right which he can enforce where there has been no delivery, must be the intent on the donor's part to give merely an equitable estate through the medium of a trustee, either with or without transmutation of possession. Therefore, the initial question in these savings bank cases is, do the facts show an intent to make a gift of the legal title or will they bear the interpretation of a trust by the settlor's constituting himself the trustee and desiring to transfer an equitable estate merely? If a gift of the legal title is intended the case is not one of trust at all and the further question arises as to whether it is executed or not.3 4 Cases of an attempted gift of the legal title are often confused with cases of a trust, but it is well settled that a court of equity will not carry out an unexecuted gift of the legal title on the theory of a declaration of a trust.5 A deposit in a savings bank may take the form of either of the above transactions. Thus a deposit by A in the name of B unaccompanied by a delivery of the bank book (the agreed evidence of title) is ineffectual to pass any interest whatever to B ; while the opening of an account by A in his own name with the intention to constitute himself a trustee for B is sufficient to forthwith vest in B the equitable right to the fund according to the terms of the trust.7 6 positor and the bank takes the form of an alleged trust, the initial question is, what was the intention of such depositor at the time he opened the account? Did he intend to really create a trust in favor of the beneficiary, or are his acts the result of an entirely different intent? It is fundamental that a declaration of trust need not be in writing and no consideration is necessary. As to what the depositor's intention was, as regards the creation of the trust, is a question of fact to be ascertained by the legal evidence." As to what is legal evidence is somewhat difficult to determine at times, but the tendency of the courts is to be extremely liberal in the admission of relevant evidence tending to throw light upon the difficult question of what was a person's intention at a certain time. The point in issue is, what was the intention of the settlor at the time he did the acts declared on as creating the trust? In these savings bank cases this is usually the time when the account was opened. Primarily then the form in which the account was opened, directions given for such opening, the acceptance by the depositor of a deposit book containing a statement of the trust form of the account, statements made at the time of the opening constituting res gesta, all this is competent evidence.10 Other relevant evidence tending to throw light upon the transaction, such as the means, family and dependents of the depositor, and the rules of the bank limiting amounts on which interest is paid, is certainly competent." Ift he depositor is alive of course his own testimony upon the subject is of the utmost importance. 12 The depositor being dead, his declarations made prior to the creation of the trust would seem admissible as within the usual principles of evidence of intent. 13 But while subsequent declarations tending to support the trust would seem admissible as declarations against interest, 14 such subsequent declarations which are not against interest would seem objectionable according to gen8 Wadd v. Hazelton (supra). 14 Haux v. Dry Dock Sav. Inst., 2 App. Div. 165; Mabie v. Bailey, 95 N. Y. 206, 210; Macy v. Wil Assuming that the transaction between the de- liams, 83 Hun, 243. 150 and 51 Vict. chap. 40, sec. 3 (1). 2 Wadd v. Hazleton, 137 N. Y. 215. 3 Beaver v. Beaver, 117 N. Y. 421; Young v. Young, 80 N. Y. 422. Beaver v. Beaver (supra); Matter of Crawford, 113 N. Y. 560; Est. Richard Ward, 2 Red. Sur. 251. Wadd v. Hazleton (supra); Young v. Young (supra); Milroy v. Lord, 4 D. F. & J., 274. Noyes v. Inst. for Savings, 164 Mass. 583. Martin v. Funk, 75 N. Y. 134; Willis v. Smythe, 91 N. Y. 297; Mabie v. Bailey, 95 N. Y. 206. 10 Martin v. Funk (supra); Hyde v. Kitchen, 69 Hun, 280; Mabie v. Bailey (supra). "Mable v. Bailey (supra); Beaver v. Beaver (supra); Haux v. Dry Dock Sav. Inst. (supra). 12 Cunningham v. Davenport, 147 N. Y. 43. 13 Hillmon Case, 145 U. S. 622; Commonwealth v. Trefethen, 31 N. E. Rep. 961 (Mass.); R. R. Co. v. Herrick, 29 N. E. Rep. 1052 (Ohio). eral rules. The courts have, however, admitted such subsequent declarations both ways, and there is authority for this course.2 The trust having once been intentionally created its duration is commonly during the life of the depositor-trustee. Once created no power of revocation having been reserved the trust is irrevocable 3 and must be executed according to the terms of its creation; but the difficult question is, what are those terms? Sometimes the facts show that the depositor intended to himself draw the interest during his life, the principal and any balance of interest to go to the beneficiary upon the depositor's death. Where the trustee, having once created the trust, withdraws the whole or a portion of the moneys and uses them for a purpose inconsistent with the trust, his estate is responsible for such amount.5 Payment by the bank to the depositor-trustee is a valid discharge to the bank, in the event of its having received no notice from the beneficiary of any claim adverse to the right of the trustee to so control the fund." But the transferring of the whole or part of such amount to a new account in the name of another beneficiary will not release the bank, it being thereby effected with notice that the trustee is attempting to do an act inconsistent with the trust.? the courts would seem to give judicial sanction to this view. 10 Upon the death of the depositor-trustee the position of the bank is often one of extreme difficulty, in determining the proper person to whom payment should be made. Prior to 18829 the bank was justified, on the death of the trustee, in paying the amount of the deposit to his personal representatives, no claim having meanwhile been made by the beneficiary, but since that time such payment is no discharge. The statute authorizes the bank on the trustee's death, to pay the deposit to the beneficiary, in the absence of notice of the existence of a further trust. The bank may also pay to a minor the amount of a deposit made for him, but the statute is merely an enabling one, permitting the bank to deal directly with the beneficiary or minor, if it chooses, not mandatory or in limitation of its common law rights.13 12 The controversy in these cases usually arises on the death of the depositor, between the beneficiary and the depositor's personal representatives. The respective claimants usually demand the amount of the deposit from the bank, one or the other bringing suit. The statute extends the scope of interpleader for the protection of the bank and compels persons claiming the deposit to be brought in as parties. 15 The foregoing remarks show that the greater part of the litigation at present arising out of these savings banks trust deposits comes from the want of direct and definite proof of the depositor's intention at the time he opened the trust account. The question as to what a person's intention was at a particular time is always one of extreme difficulty. A case of much difficulty arises where the beneficiary dies before the depositor-trustee. To whom does the account belong? Does it belong to the beneficiary's estate then, or after the depositor's decease, or does the prior death of the beneficiary cause the trust to come to an end? In almost every case, it is submitted, the creator of the trust intends the eventual taking of the beneficiary to be conIt would seem the remedy is with the legislature, ditional upon the latter's surviving the settlor. and that much of this litigation might be prevented This being the fact, it would seem a desirable piece and the overcrowded calendars of our courts reof either legislative or judicial enactment to provide lieved by just so much. The statute should prothat the death of the beneficiary before the deposi-vide that before the banks receive a deposit in form tor terminates the trust, and a recent utterance of in trust, the depositor should be required to make I Waterman v. Whitney, 11 N. Y. 157; Woodward v. Goulston (H. L.) 11 Ap. Cas. 469; Comp. Taylor Will Case, 10 Abb. R. n. 306; Lane v. Moore, 151 Mass. 87; Sugden v. St. Leonards, 1 Pr. Div. 154. 2 Beaver v. Beaver, 117 N. Y. 421, 431. 3 Mabie v. Bailey, 95 N. Y. 206, 210. 4 Grafing v. Heelman, 1 App. Div. 260, 263. 5 Macy v. Williams, 55 Hun, 489, Comp. Macy v. Williams, 83 Hun, 243, where it was held no trust was ever created. 6 Boone v. Savings Bank, 84 N Y. 83; Schluter Rep. 414. (The facts here arose prior to the statute v. Savings Bank, 117 N. Y. 125. of 1882, supra.) 14 L. 1892, c. 689, sec. 115. 15 Mahn v. Gornwich Bank, 16 Misc. 537; Progressive Hand. Union v. German Savings Bank, 23 Abb. N. C. 42. name and address or other means of identifying the proposed beneficiary, whether the trustee is to have the power to withdraw the interest and such part of the principal as he may see fit, and whether the trust is to terminate by the death of the beneficiary before the trustee. When a bona fide trust is intended, it should be made clear and certain and not indefinite and uncertain, while if the deposit is but a cover by which it is sought to evade the statute, it is contrary to both letter and spirit of the savings bank acts. Legislative enactment is necessary to protect the estates of people of small means from the possibility more, probability of being depleted by much unnecessary litigation. FREDERICK B. CAMPBELL, LL. B. ERRATA. In our issue of October 10, 1896. appeared an able article on "The Plea of Res Judicata in Actions for Personal Injuries," which we credited to Linton D. Landurn, Esq., of Columbus, Miss. The name of author was mispelled, for which we desire to make due amends. The gentleman's name should have appeared as Linton D. Landrum. THE EDITOR. Notes of American Decisions. CORPORATIONS--REORGANIZATION--LIABILITY FOR DEBTS.—A mining company, having exhausted its resources and incurred a large indebtedness in attempting to develop its mines, leased the same to a new corporation formed by the same stockholders under the laws of a different State. The new corporation paid off the debts of the old one, and prosecuted the work for some time, but finally became insolvent. Held, that, as against third persons, the reorganization was a mere change of name, without affecting the ownership of the property, and that the old company, as well as the new, was chargeable with a mechanic's lien for labor and materials furnished to the latter. (Hatcher v. United Leasing Co. [U. S. C. C. Colo.], 75 Fed. Rep. 368.) CARRIERS OF PASSENGERS-LIABILITY AS TO BAGGAGE. The omission of a passenger to call for her trunk until the day following that of arrival at her destination is, under ordinary circumstances, unreasonable, and therefore the carrier ceases to be responsible as such, and is liable merely as a warehouseman. (Wiegand v. Central R. Co. of New Jersey [U. S. C. C., Penn. ], 75 Fed. Rep. 370.) DIVORCE ALIMONY-ENFORCEMENT IN ANOTHER STATE. A decree in a divorce judgment for payment of a specific sum absolutely as alimony, having the effect in the State where rendered of a judgment ADMINISTRATION. One of the official receivers in bankruptcy, as the trustee of the estate of the husband of a deceased intestate, applied for administration without citing the husband. The amount of the estate was £105 2s. 10d., which was claimed by the official receiver on behalf of the creditors of the bankrupt. Held, that notice of some kind must be given to the husband, but that, upon the registrar being satisfied as to this, the grant might go, and, as the applicant moved in his official capacity, sureties might be dispensed with. (Probate Div.: In the goods of Sarah Ann Morgan, deceased, 75 L. T. Rep. 190.) DIVORCE PRACTICE.-A husband who petitions for dissolution of his marriage on the ground of his wife's adultery must join the alleged adulterer as co-respondent, though he possesses no legal evidence against the alleged adulterer, and though his only knowledge as to the man's name be derived from confessions made by the wife or from other ex parte statements. Jenkings v. Jenkings, (15 L. T. Rep. 512; L. Rep. 1 Prob. and Div. 330); Gill v. Gill, (60 L. T. Rep. 712); Bagot v. Bagot, (62 L. T. Rep. 612); overruled. Payne v. Payner, Rodway and Eddels, (60 L. T. Rep. 288); approved. New Books and New Editions. ELEMENTS OF JURISPRUDENCE, by Thomas Erskine Holland, D. C. L., Barrister at Law. This is the eighth edition of Mr. Holland's work on Jurisprudence, the fame of which is so world wide as to require no further comment here. It is sufficient to say that the author has brought the work thoroughly up to date, even giving many references to the German Civil Code which only went into effect in August last. Published by The Macmillan Company, 66 Fifth avenue, New York city; price, $3.00, net. The Albany Law Journal. ALBANY, NOVEMBER 14, 1896. Current Topics. THE developement of the law in relation to married women has, perhaps, been more rapid than any other branch of jurisprudence. The abrogation of the common law by statutory enactment, while it has added and developed the privileges which a feme covert had, has nevertheless led to many attempts to circumvent the intendment of the statute. No case of recent date more fully illustrates these suggestions than that of Talcot v. Arnold, 35 Atl. Rep. 532, which was decided last month by the Court of Chancery of New Jersey. services, or as to the disposition of the property of the business. As her agent and trustee he received the proceeds, and supported himself and his family therewith, and spent what money he desired, and with the surplus, purchased in the name of his wife a dwelling house and lot. In the prosecution of the business he had entire control. The property thus accumulated was held to be subject to the claims of his creditors. But it is strongly insisted that all the property which is now alleged to be equitable assets of the husband is the outcome of his inventive ability, and that he had the right to give his talent to his wife, without impressing upon the property produced by it any liability for his own debts. It is said that a man is not the slave of his creditors, and that he is not bound to devote his personal labor or mental ability to the payment of his debts. This statement is undoubtedly true. While there is a moral duty to pay debts, yet there is no method of physical coercion by which the debtor can be compelled by any judicial proceeding to do so. But the question here is not whether the debtor can be compelled to work for his creditors, but whether if he does put into action his latent ability to earn money, and it produces property, the property can be reached and applied to the payment of his debts. In Abbey v. Deyo, 44 N. Y., 344, Mr. Commissioner Ward Hunt, in his opinion, took the ground that the debtor could give his time and his talents to whomsoever he On pleased. It seems that after the failure of the firm in which the husband had been a partner, his wife advanced to him a certain sum of money with which he supported his family and paid the expenses of the shop in which he carried on a series of experiments as an inventor. He caused certain patents to be issued in his wife's name and from them considerable sums of money were realized from time to time. A portion of the proceeds was put in property in the wife's name. All the contracts in the business were made in the wife's name and the property in which the business was conducted and the bank accounts stood in her name. On the trial no contract of employment was shown and the entire course of conduct was to the effect that the husband was master of the business and that the wife exercised no control over it and that she expected no accounting in relation to the business. The court holds, most properly it seems to us, that the business was the husband's and that the proceeds should be applied to one of the firm debts, subject, however, to the prior lien of the wife for the repayment of the money which she had advanced to her hushand. On this point the court writes: The facts of the case, as I have found them, are very much in line with those in Glidden v. Taylor, 16 Ohio St. 509. In that case the husband manufactured in the name of his wife for years. There was no formal agreement between the husband and wife concerning his VOL. 54 No. 20. Therefore it followed that however great his talents were, if he chose to exercise them for the benefit of his wife, the product was hers. In Voorhees v. Bonesteel, 16 Wall. 31, the Supreme Court of the United States, on appeal from the Circuit Court of the Eastern District of New York, followed the cases in the State courts in holding that a wife could employ her husband to manage her business, and that the application of a portion of the income of the wife's separate property to the support of the husband would not impair the title of the wife. In Aldridge v. Muirhead, 101 U. S. 397, on appeal from the Circuit Court for the District of New Jersey, Chief Justice Waite held that the fact that the husband had rendered services in employing the wife's capital in the purchase of lands would not invalidate her title thereto, if his services were devoted to her separate property. These cases were cited with approval by Vice-Chancellor Van Fleet, in his opinion in Tresch v. Wirtz, 34 N. J. Eq. 124. The right of a wife to employ her husband in her grocery business, in consideration of his clothes and board, was upheld by Vice-Chancellor Bird in Kutcher v. Williams, 40 N. J. Eq. 436; 3 Atl. 357- I do not understand, however, that in any case decided in the courts of this State it has been held that the right of a husband to give away the proceeds of his labor or his talents as he pleases, free from the demands of his creditors, has been asserted in the unrestricted language used in the opinion in Abbey v. Deyo, supra. It is to be observed that, in all the cases so far mentioned, the services of the husband were rendered in a separate business, or upon the separate property, of the wife. There is no instance within my knowledge where a husband has said to his wife: "I am going to work, and I give to you my labor and its fruits," that a court has held that the gift of the property creating potentiality of the husband carries to the donee a title to the property created, free from all liability to pay the hus band's debts. husband to give to his wife, unrestrictedly, all the profits of his labor or his talent. Instead of upholding the right of the husband to this extent, the courts have asserted a different rule. In Bank v. Sprague, 20 N. J Eq., 13, Chancellor Runyon held that while a husband had the right to give to his wife her earnings when she carried on her separate business with his assistance, with her own means and on her own account, yet, when the labor and skill of the husband had united with those of the wife, the business would be considered as the husband's, and the proceeds would not be protected from his creditors. So, in Quidort v. Pergeaux, 18 N. J. Eq., 472, it was held that the husband could not give to his wife his earnings. It is true that at the date of these decisions section 3 of the present Married Woman's act (Revision, p. 637) had not been enacted. That section became operative in 1874. The statute shields all the earnings of the wife derived from her separate business from her husband's creditors. Under this statute the relation of the hus band and his wife is exactly the same as it was before its enactment whenever the husband had abandoned, in favor of his wife, all claim to her earnings. In both the cases cited, the hus band had done this so far as he was able. The ability of the husband to confer all the benefit resulting from his labor and skill was not affected at all by the act, nor does the act modify or annul the force of the previous decisions touching that point. Those cases represent the true doctrine. No debtor can obtain a clearance from all the claims of his creditors voluntarily turn over all the proceeds of his labors or his ability by a gift which precedes or follows the accretion of such property, so long as he has creditors. As has already been remarked, it is, of course, true that a court cannot exert any authority over a debtor to make him work with his hands or his intellect for his creditors; and, even when a debtor has turned his ability into value by the exertion of his talent or the exercise of his hands, it is in a degree free from liability if the debtor is a husband. Such a debtor undoubtedly possesses the right to labor for the support of his family and the main-except by virtue of a bankrupt law; nor can he tenance of his children. This is a duty, and, so long as the result of his labor does not exceed an amount sufficient to properly maintain and educate his family in their walk of life, it cannot be reached. (Phillips v. Hall, 160 Pa., 60, 28 Atl., 502; Seay v. Hesse, 123 Mo., 450, 24 S. W., 1017, and 27 S. W., 633; Bump. Fraud. Conv., par. 25.) A husband can render those incidental services which the head of the family generally performs, and can give his wife the benefit of his experience and skill in the transaction of her separate business, and in the management of her separate property (Tresh v. Wirtz, supra). But there is no case in our courts which has upheld the right of the My conclusions are that the business carried on in the name of Mrs. Arnold was not her separate business, but was, in fact, the business of her husband. The profits derived from it, and the property into which the profits have been put, are liable, as equitable assets of the husband, to be applied to the payment of the complainant's judgment. I am of the opinion, however, that Mrs. Arnold has a superior equitable lien apon all this property, as security for the repayment to her of all the money |