Learned, P. J.
The court of appeals, when this case was before it, seems to have taken judicial notice of a practice that persons deposit money in savings banks “to the credit of real or fictitious persons, with no intention of divesting themselves of ownership.” If such a practice exists, we find no proof of its existence in this case. No testimony was given showing such a practice, and no reason is shown why John 0. Beaver should have had any of the tricky objects in view which are mentioned by the court of appeals. The charter of the bank permitted deposits to the amount of $5,000, (Laws 1851, c. 152, § 6;) and it does not appear that John O. Beaver’s deposits had previously approached that sum; and, since there might have been the laudable motive of parental affection, we do not see why a less praiseworthy motive should be assumed. The application to the bank to receive the deposit was in the name of Asiel G. The request in the application was to receive the money from him, and to open an account with him. It states his age, place of birth, and residence. Testimony was given showing that it is the custom for the person who brings the money to sign the application. Hence John O. signed the application, although it was made in behalf of Asiel G. The signature of John 0. would be properly made by him as natural guardian of his son. The additional proof given on the second trial clearly establishes that John O. intended to give this money to Asiel G., as is found by the learned justice. We are relieved, therefore, from the necessity of attributing to him any of those evil intentions, such as evading rules of the bank or escaping taxation, which the court of appeals seem to suppose prevail in the great majority of cases. And the ground that there was no evidence of a gift, held by that court in the former trial, no longer exists. We know now by positive proof what was the intention of John O. when he caused this money to be deposited to the credit and for the benefit of Asiel G. Starting, then, with the fact that John O. intended to give this money to Asiel G., we must inquire whether any rules of law compel us to defeat this lawful intention. And we must observe that the intention was not to make a future gift, but to give at that time. It is found by the learned justice that the moneys were deposited by John O. with intent to pass the title to Asiel. The words “payable to John O. Beaver,” which had been in the account-book and in the pass-book, were erased before the pass-book was delivered by the savings bank. As Asiel G. was the son of the donor, the intention ought to be carried into effect, if consistent with rules of law.
The only objection is that John O. did not deliver to Asiel G. the passbook. In Martin v. Funk, 75 N. Y. 134, the donor deposited money in a savings bank in her own name, adding the words, “in trust for L. W.” The donor retained the pass-book until his death, and the donee was not notified of the gift until after that event. In an action for the money by the donee (or cestui que trust) against the bank, she recovered. That case settled—First, that notice of the gift was not necessary; second. that retention of the book in that case and in similar cases did not prevent the gift from taking effect. It appears, too, by that case, and by the similar cases of Willis v. Snyth, 91 N. Y. 297; Mabie v. Bailey, 95 N. Y. 206; Scott v. Harleck, (Sup.) 1 N. Y. Supp. 788,—that the trust insuch cases is treated as what is sometimes called a “passive trust;” for the cestui que trust is allowed to recover the trust funds; so that the so-called cestui que trust is held to be, at least after the decease of the donor, the absolute legal owner. Of course, if there were an active trust, the cestui que trust would not have the legal title; and on the death of the trustee, under the present statute, the property would not go to his personal representatives, but to the court, to be managed by a new trustee. Laws 1882, c. 185. But in these cases, where the language of the deposit was as above stated, it has been held that the person for whom the deposit was held in trust was entitled to recover it as legal owner. Therefore the original.transaction has been considered by the courts to be practically a [478]*478gift by the donor to the person named as cestui que trust; and the transaction is described as a gift in Martin v. Funk. This is important, because it shows that the transaction is practically the same, whether money is deposited in the name of the donee, or in the name of the donor in trust for the donee.
What, then, is the reason why this mode of giving has been held to be effectual, notwithstanding the donor retained the book? Clearly this: The donor was after the gift the legal custodian of the voucher. Therefore there was no person other than himself to whom the donor could deliver the book. Thus it is said in Martin v. Funk: “She must be deemed to have retained it as trustee. The book was not the property, but only the voucher for the property, which, after the dep’osit, consisted of the debt against the bank.” Ho tice this remark, “The book was not the property.” The donor then had parted with her property by depositing it. The property after the deposit consisted of the debt against the bank. The bank-book or voucher showed to whom the debt was payable, and possession of the voucher did not make the debt payable to the possessor. To whom, then, should the donor, in a case like that of Martin v. Funk, deliver the voucher? The donor is himself trustee, and as such is entitled to the custody of the voucher. If, in such a case, the donor, A., had made a deposit in the name of B., in trust for C., then it might be said that a delivery of the voucher to B. would be necessary.
How, the principle thus settled in these cases is applicable here. Asiel <3-. was a minor. John O., as father, was natural guardian. He was entitled to the custody of this voucher for property belonging to his minor son. It is not meant by this that, as such guardian, he could dispose of the property of his son. But it is plain that, in the absence of proof that any one else had been appointed guardian, he was the proper person to have the custody of his voucher. Let us suppose that Asiel G-. had been only a year old; what could John O. have done with the pass-book, when, for the purpose of a gift, he had deposited this money in Asiel’s name? Should he tie the book around the infant’s neck or fasten it to its apron string? Plainly he could make no delivery of the book to a mere infant. Or, if any other person had made the gift, would not such a person have delivered the book to the father of the infant? To deliver the book to a mere infant would be folly. And tile same principle must apply to a minor who is older. When the donee is a minor, younger or older, in the absence of any appointed guardian, the father must be the natural custodian of any such voucher. There are cases in Massachusetts holding that an acceptance of a gift or notice to the donee is necessary to complete the gift. But in Gerrish v. Institution, 128 Mass. 151, it is pointed out that the decision in Martin v. Funk, ubi supra, differs from the view of the Massachusetts court, and holds a deposit in trust to be ' valid, though the donee know nothing of it.
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Learned, P. J.
The court of appeals, when this case was before it, seems to have taken judicial notice of a practice that persons deposit money in savings banks “to the credit of real or fictitious persons, with no intention of divesting themselves of ownership.” If such a practice exists, we find no proof of its existence in this case. No testimony was given showing such a practice, and no reason is shown why John 0. Beaver should have had any of the tricky objects in view which are mentioned by the court of appeals. The charter of the bank permitted deposits to the amount of $5,000, (Laws 1851, c. 152, § 6;) and it does not appear that John O. Beaver’s deposits had previously approached that sum; and, since there might have been the laudable motive of parental affection, we do not see why a less praiseworthy motive should be assumed. The application to the bank to receive the deposit was in the name of Asiel G. The request in the application was to receive the money from him, and to open an account with him. It states his age, place of birth, and residence. Testimony was given showing that it is the custom for the person who brings the money to sign the application. Hence John O. signed the application, although it was made in behalf of Asiel G. The signature of John 0. would be properly made by him as natural guardian of his son. The additional proof given on the second trial clearly establishes that John O. intended to give this money to Asiel G., as is found by the learned justice. We are relieved, therefore, from the necessity of attributing to him any of those evil intentions, such as evading rules of the bank or escaping taxation, which the court of appeals seem to suppose prevail in the great majority of cases. And the ground that there was no evidence of a gift, held by that court in the former trial, no longer exists. We know now by positive proof what was the intention of John O. when he caused this money to be deposited to the credit and for the benefit of Asiel G. Starting, then, with the fact that John O. intended to give this money to Asiel G., we must inquire whether any rules of law compel us to defeat this lawful intention. And we must observe that the intention was not to make a future gift, but to give at that time. It is found by the learned justice that the moneys were deposited by John O. with intent to pass the title to Asiel. The words “payable to John O. Beaver,” which had been in the account-book and in the pass-book, were erased before the pass-book was delivered by the savings bank. As Asiel G. was the son of the donor, the intention ought to be carried into effect, if consistent with rules of law.
The only objection is that John O. did not deliver to Asiel G. the passbook. In Martin v. Funk, 75 N. Y. 134, the donor deposited money in a savings bank in her own name, adding the words, “in trust for L. W.” The donor retained the pass-book until his death, and the donee was not notified of the gift until after that event. In an action for the money by the donee (or cestui que trust) against the bank, she recovered. That case settled—First, that notice of the gift was not necessary; second. that retention of the book in that case and in similar cases did not prevent the gift from taking effect. It appears, too, by that case, and by the similar cases of Willis v. Snyth, 91 N. Y. 297; Mabie v. Bailey, 95 N. Y. 206; Scott v. Harleck, (Sup.) 1 N. Y. Supp. 788,—that the trust insuch cases is treated as what is sometimes called a “passive trust;” for the cestui que trust is allowed to recover the trust funds; so that the so-called cestui que trust is held to be, at least after the decease of the donor, the absolute legal owner. Of course, if there were an active trust, the cestui que trust would not have the legal title; and on the death of the trustee, under the present statute, the property would not go to his personal representatives, but to the court, to be managed by a new trustee. Laws 1882, c. 185. But in these cases, where the language of the deposit was as above stated, it has been held that the person for whom the deposit was held in trust was entitled to recover it as legal owner. Therefore the original.transaction has been considered by the courts to be practically a [478]*478gift by the donor to the person named as cestui que trust; and the transaction is described as a gift in Martin v. Funk. This is important, because it shows that the transaction is practically the same, whether money is deposited in the name of the donee, or in the name of the donor in trust for the donee.
What, then, is the reason why this mode of giving has been held to be effectual, notwithstanding the donor retained the book? Clearly this: The donor was after the gift the legal custodian of the voucher. Therefore there was no person other than himself to whom the donor could deliver the book. Thus it is said in Martin v. Funk: “She must be deemed to have retained it as trustee. The book was not the property, but only the voucher for the property, which, after the dep’osit, consisted of the debt against the bank.” Ho tice this remark, “The book was not the property.” The donor then had parted with her property by depositing it. The property after the deposit consisted of the debt against the bank. The bank-book or voucher showed to whom the debt was payable, and possession of the voucher did not make the debt payable to the possessor. To whom, then, should the donor, in a case like that of Martin v. Funk, deliver the voucher? The donor is himself trustee, and as such is entitled to the custody of the voucher. If, in such a case, the donor, A., had made a deposit in the name of B., in trust for C., then it might be said that a delivery of the voucher to B. would be necessary.
How, the principle thus settled in these cases is applicable here. Asiel <3-. was a minor. John O., as father, was natural guardian. He was entitled to the custody of this voucher for property belonging to his minor son. It is not meant by this that, as such guardian, he could dispose of the property of his son. But it is plain that, in the absence of proof that any one else had been appointed guardian, he was the proper person to have the custody of his voucher. Let us suppose that Asiel G-. had been only a year old; what could John O. have done with the pass-book, when, for the purpose of a gift, he had deposited this money in Asiel’s name? Should he tie the book around the infant’s neck or fasten it to its apron string? Plainly he could make no delivery of the book to a mere infant. Or, if any other person had made the gift, would not such a person have delivered the book to the father of the infant? To deliver the book to a mere infant would be folly. And tile same principle must apply to a minor who is older. When the donee is a minor, younger or older, in the absence of any appointed guardian, the father must be the natural custodian of any such voucher. There are cases in Massachusetts holding that an acceptance of a gift or notice to the donee is necessary to complete the gift. But in Gerrish v. Institution, 128 Mass. 151, it is pointed out that the decision in Martin v. Funk, ubi supra, differs from the view of the Massachusetts court, and holds a deposit in trust to be ' valid, though the donee know nothing of it. It is sufficiently established in this case, and is so found, that John 0., at the time of the deposit, made it “with the purpose and intent that such money should thereafter be and remain the property of said Asiel Beaver.” It is proved (if proof were necessary) that it is very general for parents to bring money and deposit it in the name of their minor children. So that the only question is whether the continued possession by John 0. of the voucher defeats his intention as a matter of law. If he had had this money deposited in his own name, adding the words, “in trust for Asiel Gf. Beaver,” and had retained the voucher, this would have been a valid gift to Asiel, though Asiel did not know of the transaction. Martin v. Funk, It would have been said John O. retained the voucher as trustee. How, when, with the same intent and purpose, he deposits the money absolutely in Asiel’s name, and retains the voucher, it is argued this is no gift. The distinction between the two cases is thin, very thin, when used to defeat the laudable intent of a father to give money to a minor child. And if the distinction is sound, then a father-cannot val[479]*479idly give money to his minor child by deposit in a savings bank, except through the fiction of calling himself “trustee.” If the retention of the voucher in the Funk Case was held to be in the character of a trustee, why was not the retention by John 0. in this case held to be in his character of guardian by nature, after his intention to give the money has been proved as a fact? Of course, the great object of requiring delivery is to mark the distinction between a mere intention to give at some future time and a present act of giving. That was marked by the deposit in Asiel’s name, with the intent, now established by other proof, of making a gift. The consideration is love and affection. The transfer is made by putting the money in the bank payable to Asiel, and to no one else. The bank by its rules agrees to endeavor to prevent frauds and impositions, and yet declares that payments to a person presenting the book shall discharge the institution. But that rule does not authorize the bank negligently to pay to a person other than the one in whose name the account stands. Appleby v. Bank, 62 N. Y. 12. The courts have gone even further than this, and have said that payments to a stranger without authority of the creditor are not valid. Smith v. Bank, 101 N. Y. 58, 4 N. E. Rep. 123. And under the decision in this last case John O. Beaver could not, without the written order of Asiel, draw any of this money, although he did have possession of the pass-book. The language of the rules of the bank construed in that case is similar to that of the rules of this bank; and the court say, speaking of the pass-book, “its possession constitutes in itself no evidence of a right to draw money thereon.” The mode of making payments is provided for by the rules, viz., personally, by order in writing, and by letters of attorney. It was then only by Asiel personally, or by his written order, or his letters of attorney, that this money ■could be drawn. If it is said that the donor must part with control over the gift, what control did John O. retain over this money? It was not payable to him. The possession of the bank-book did not authorize him to draw the money without authority from Asiel. Crawford v. Bank, 100 N. Y. 50, 2 N. E. Rep. 881. The case of Schoenwald v. Bank, 57 N. Y. 418, is referred to in the Smith Case, above cited, and it is said that in that case the language of the contract was substantially different. Whether that case can stand against the decision of Smith v. Bank we need not inquire. It is enough that the rules of the bank in the present case bring it within the later decision. And under that decision John O. could not, by virtue of possession of the pass-book, draw out any of this money. If the possession of the pass-book did not authorize him to draw the money, then such possession gave no control over the money,—the thing given. In Re Crawford, 113 N. Y. 560, 21 N. E. Rep. 692, the deposit of money in a bank to the credit of another person was held to be a gift. As to the bonds in that case, they were coupon bonds, payable to bearer, and therefore passed by delivery. They had not been delivered, and the court say: “27otliing appears in the case as to what was the effect of the so-called ‘registry.’” And the registration had certainly no effect on the coupons, which remained still payable to bearer. The pass-book in the present case was not negotiable paper, and the money entered on it was payable to no one but Asiel; and payment by the bank to Asiel, when of age, if not before, (see the charter of the bank,) would have discharged the liability of the bank. He was the depositor, and the agreement of the bank was with him. It is immaterial from whom the consideration came. The promise was to Asiel. He could adopt it, even though not a party. Lawrence v. Fox, 20 N. Y. 268. It seems to us that this subject of the delivery of the gift was not so decided in the court of appeals that the remarks in the opinion are controlling on the new and most important fact presented on the second trial, viz., the intention of John O. to make a present gift, and his intention that the money should become and remain the property of Asiel. 27othing was said as to the possibility of making an act[480]*480ual delivery of the voucher, and -nothing as to the inability of John 0. thereafter to draw out the money legally. We think, therefore, that the judgment should be reversed, and a new trial granted, costs to abide event.