McNamee, J.
The parties are husband and wife. The plaintiff wife seeks an adjudication that she is the owner of a half interest in a bond and mortgage standingnh. their joint names, and a judgment for half the proceeds thus far collected. The defendant denies that the wife has any interest in the bond and mortgage, except the right of survivorship.
After hearing all of the evidence, the trial court found that the parties were tenants in common, and that each was presently entitled to half of the proceeds, and directed judgment accordingly. It is this finding that makes the question for review.
The facts that must determine the case are not in dispute. They appear by the uncontradicted evidence of both parties, and the attorney who drew the papers. The defendant husband became: the owner in 1915 of a parcel of land in Amsterdam, N. Y., and’ they intermarried in 1921. Later the husband built a house on the land, at bis sole expense; and in 1924 these parties joined in a deed thereof to one Kaufman and his wife, who gave back a' bond for part of the consideration, and a purchase-money mortgage j to secure its payment. The bond and mortgage were made payable to the parties hereto jointly, the mortgage denominating them; “ husband and wife.” At the time of the sale to the Kaufmans, the defendant husband was the sole owner of the premises. The wife made no contribution to the cost of the real estate, or of the mortgage. j
The husband testified that he told the scrivener in the presence of bis wife to put her name in the bond and mortgage, so that it would go to her if he died, and that during his life he was to have the principal and interest. His testimony runs: “ I told Mr. Knight [455]*455that I wanted to put my wife’s name on the mortgage in ease I died, so she would have it. Q. And she was there and heard you say that? A. She was. * * * Q. And that was accomplished, was it? A. Yes, sir.” And when further interrogated it appears in reference to the conversation: “ The Court to witness: * * * Q. What was said? A, I was to have the principal and interest unless I died, * * * and if I should happen to drop away it was supposed to come to her. That is the reason I turned it over.” The lawyer stated in his testimony that he told the parties “ that it would be a good idea to put her name in, so if anything happened to him, if he should die, that mortgage would belong to her.”
None of the facts testified to by the defendant or by Mr. Knight was contradicted by the plaintiff. On the contrary, she admitted her presence at the conversation detañed, that she put no money in the investment, and that “ He said that my name should go in the mortgage, * * * so if anything should happen to him I would have it.” In addition, she testified that she frequently received payments of interest and indorsed them on the bond, and always delivered the money to her husband; that she never devoted any of the money to her personal use; and that she had no property, and that her sole duties were to keep the home and ■care for the children. The wife further stated in her testimony ¡that the money from the bond and mortgage was to be employed ¡by her husband in his business, and to pay taxes, and for general ¡use. She claimed no interest in her husband’s business, and had no taxes to pay.
| It may aid clarity to observe that a mortgage is personal property, and that the mortgagors are in no way concerned with the interests of the mortgagees as between themselves. The respective interests of multiple owners of securities are commonly not declared in the I instrument, as between themselves. On their face, and in so far as the obligor is concerned, they are generafiy to be regarded as joint owners, and presumed to have equal interests, in the absence of proof to the contrary. But in a weU-defined class of cases, however, a different result arises when the obligees are husband and wife. The instruments in question here do not by their terms declare the interests of the mortgagees, and these must be determined from presumption or proof, or both. And evidence bearing on that question does not vary or contradict the writing, but supplements and completes the instrument with reference to rights on which it is silent, as is illustrated by practically all of the cases about to be mentioned.
[456]*456An examination of a long line of pertinent cases makes possible the statement of a reasonably accurate rule that comprehends the case under review. A chose in action, whether a bank account, a bond and mortgage, a note, or other investment in personalty, taken in the joint names of husband and wife upon the direction of the husband, confers upon the wife the right to succeed by survivorship, when the security arises from the husband’s sole money or property, in the absence of proof of a different intent declared at the time of execution. From such a transaction it is presumed that the husband intended to benefit his wife with the ownership of the property upon his death — as it were, by way of gift causa mortis, subject only to the possible rights of creditors. And during his life the husband retains his complete ownership, control and right of disposition, and the wife has no interest therein enforcible against him. (Sanford v. Sanford, 45 N. Y. 723, 726; Matter of Albrecht, 136 id. 91, 95; West v. McCullough, 123 App. Div. 846; affd., 194 N. Y. 518; Matter of Kaupper, 141 App. Div. 54; affd., 201 N. Y. 534; Matter of Blumenthal, 236 id. 448; Matter of Kane, 246 id. 498, 504; Wetherow v. Lord, 41 App. Div. 413, 417, 418; Matter of Niles, 142 id. 198, 200; Matter of Kennedy, 186 id. 188; Matter of Larmon, 212 id. 273.)
It has been said plausibly that this rule has its roots in the common law as it existed before the coming of the Married Women’s Acts. Then the husband was not free to transfer bis personal property to his wife and still retain possession, because his possession of her personalty excluded her from ownership. And thus sprung up the device of talcing choses in action in the joint names, without delivery to her, and so insuring to her title by survivorship upon his death. This device was not affected by the Married Women’s Acts, and its use has been recognized as within the settled law until the present time. (McCullough case, supra, p. 848, and cases above.)
A different rule prevails, however, when it appears from the evidence that the investment arose from joint contributions of husband and wife, or when the source or ownership of the funds is not known. Then the husband and wife take as tenants in common under the statute. (Real Prop. Law, § 66, and cases above cited.) And contrariwise, neither the presumption nor the statute will control when the evidence establishes a variant intention of the parties to take and hold the property otherwise. (Matter of Kaupper, 141 App. Div. 54; affd., 201 N. Y. 534.) Judge Crane, speaking for the Court of Appeals, has said that “ the intention of the husband is the thing to be looked for.” (Blumenthal case, supra, p. 452.)
[457]*457The statute mentioned provides only that the persons taking the estate shall hold as tenants in common unless it be expressly declared to be in joint tenancy. And the statute is to be applied only as far as practicable. (Kaupper case, supra, p.
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McNamee, J.
The parties are husband and wife. The plaintiff wife seeks an adjudication that she is the owner of a half interest in a bond and mortgage standingnh. their joint names, and a judgment for half the proceeds thus far collected. The defendant denies that the wife has any interest in the bond and mortgage, except the right of survivorship.
After hearing all of the evidence, the trial court found that the parties were tenants in common, and that each was presently entitled to half of the proceeds, and directed judgment accordingly. It is this finding that makes the question for review.
The facts that must determine the case are not in dispute. They appear by the uncontradicted evidence of both parties, and the attorney who drew the papers. The defendant husband became: the owner in 1915 of a parcel of land in Amsterdam, N. Y., and’ they intermarried in 1921. Later the husband built a house on the land, at bis sole expense; and in 1924 these parties joined in a deed thereof to one Kaufman and his wife, who gave back a' bond for part of the consideration, and a purchase-money mortgage j to secure its payment. The bond and mortgage were made payable to the parties hereto jointly, the mortgage denominating them; “ husband and wife.” At the time of the sale to the Kaufmans, the defendant husband was the sole owner of the premises. The wife made no contribution to the cost of the real estate, or of the mortgage. j
The husband testified that he told the scrivener in the presence of bis wife to put her name in the bond and mortgage, so that it would go to her if he died, and that during his life he was to have the principal and interest. His testimony runs: “ I told Mr. Knight [455]*455that I wanted to put my wife’s name on the mortgage in ease I died, so she would have it. Q. And she was there and heard you say that? A. She was. * * * Q. And that was accomplished, was it? A. Yes, sir.” And when further interrogated it appears in reference to the conversation: “ The Court to witness: * * * Q. What was said? A, I was to have the principal and interest unless I died, * * * and if I should happen to drop away it was supposed to come to her. That is the reason I turned it over.” The lawyer stated in his testimony that he told the parties “ that it would be a good idea to put her name in, so if anything happened to him, if he should die, that mortgage would belong to her.”
None of the facts testified to by the defendant or by Mr. Knight was contradicted by the plaintiff. On the contrary, she admitted her presence at the conversation detañed, that she put no money in the investment, and that “ He said that my name should go in the mortgage, * * * so if anything should happen to him I would have it.” In addition, she testified that she frequently received payments of interest and indorsed them on the bond, and always delivered the money to her husband; that she never devoted any of the money to her personal use; and that she had no property, and that her sole duties were to keep the home and ■care for the children. The wife further stated in her testimony ¡that the money from the bond and mortgage was to be employed ¡by her husband in his business, and to pay taxes, and for general ¡use. She claimed no interest in her husband’s business, and had no taxes to pay.
| It may aid clarity to observe that a mortgage is personal property, and that the mortgagors are in no way concerned with the interests of the mortgagees as between themselves. The respective interests of multiple owners of securities are commonly not declared in the I instrument, as between themselves. On their face, and in so far as the obligor is concerned, they are generafiy to be regarded as joint owners, and presumed to have equal interests, in the absence of proof to the contrary. But in a weU-defined class of cases, however, a different result arises when the obligees are husband and wife. The instruments in question here do not by their terms declare the interests of the mortgagees, and these must be determined from presumption or proof, or both. And evidence bearing on that question does not vary or contradict the writing, but supplements and completes the instrument with reference to rights on which it is silent, as is illustrated by practically all of the cases about to be mentioned.
[456]*456An examination of a long line of pertinent cases makes possible the statement of a reasonably accurate rule that comprehends the case under review. A chose in action, whether a bank account, a bond and mortgage, a note, or other investment in personalty, taken in the joint names of husband and wife upon the direction of the husband, confers upon the wife the right to succeed by survivorship, when the security arises from the husband’s sole money or property, in the absence of proof of a different intent declared at the time of execution. From such a transaction it is presumed that the husband intended to benefit his wife with the ownership of the property upon his death — as it were, by way of gift causa mortis, subject only to the possible rights of creditors. And during his life the husband retains his complete ownership, control and right of disposition, and the wife has no interest therein enforcible against him. (Sanford v. Sanford, 45 N. Y. 723, 726; Matter of Albrecht, 136 id. 91, 95; West v. McCullough, 123 App. Div. 846; affd., 194 N. Y. 518; Matter of Kaupper, 141 App. Div. 54; affd., 201 N. Y. 534; Matter of Blumenthal, 236 id. 448; Matter of Kane, 246 id. 498, 504; Wetherow v. Lord, 41 App. Div. 413, 417, 418; Matter of Niles, 142 id. 198, 200; Matter of Kennedy, 186 id. 188; Matter of Larmon, 212 id. 273.)
It has been said plausibly that this rule has its roots in the common law as it existed before the coming of the Married Women’s Acts. Then the husband was not free to transfer bis personal property to his wife and still retain possession, because his possession of her personalty excluded her from ownership. And thus sprung up the device of talcing choses in action in the joint names, without delivery to her, and so insuring to her title by survivorship upon his death. This device was not affected by the Married Women’s Acts, and its use has been recognized as within the settled law until the present time. (McCullough case, supra, p. 848, and cases above.)
A different rule prevails, however, when it appears from the evidence that the investment arose from joint contributions of husband and wife, or when the source or ownership of the funds is not known. Then the husband and wife take as tenants in common under the statute. (Real Prop. Law, § 66, and cases above cited.) And contrariwise, neither the presumption nor the statute will control when the evidence establishes a variant intention of the parties to take and hold the property otherwise. (Matter of Kaupper, 141 App. Div. 54; affd., 201 N. Y. 534.) Judge Crane, speaking for the Court of Appeals, has said that “ the intention of the husband is the thing to be looked for.” (Blumenthal case, supra, p. 452.)
[457]*457The statute mentioned provides only that the persons taking the estate shall hold as tenants in common unless it be expressly declared to be in joint tenancy. And the statute is to be applied only as far as practicable. (Kaupper case, supra, p. 59.) It places no restraint upon the parties as to the manner in which the intention shall be declared; neither is there any restriction as to the form of declaration. When a bond and mortgage, or an interest therein, are the subject-matter of a transaction, no interest in real estate is involved, and, as before noted, the mortgagor is not concerned with the understanding, agreement or interests of the mortgagees among themselves. No writing is called for to declare such interests, when personal property is the subject-matter of the transaction, apart from cases not cognate here. Personalty may be sold and assigned, and interest therein may be created, transferred or extinguished orally, and parol evidence is competent to establish the rights and interests of the parties. And most, if not all, of the cases above cited were tried on such a theory, and the decisions determining the nature of the tenure were supported by that kind of proof. The question of intention at the time of the transaction is the thing sought; and if sealed documents are not available for such proof, resort must be had to parol. Otherwise, how could it be possible generally to prove who owned the funds with which the security was bought, whether or not there were contributions by both husband and wife, or by other persons, or that the source of the funds was unknown, or who had held possession of the documentary evidence, what disposition was made of the income, or what were the terms of any agreement or what the course of business which the husband and wife had between themselves? In brief, how would be shown the interests, and the extent of the interests, of the respective mortgagees? Such facts constitute the usual proof of intention in this class of cases. (McCullough, Kaupper, Blumenthal, Kennedy, Larmon cases, supra.)
The judgment should be reversed and the complaint dismissed, without costs.
Hill, P. J., concurs; Rhodes, J., concurs in result; Heffernan, J., dissents, with an opinion, in which Crapser, J., concurs.