McCLELLAN, J.
(after stating the facts as above),
The form of the action, money
had and received, was well chosen. It is equitable in nature; and in that character of action the right of the plaintiff, in equity and good conscience, to recover is to be determined upon equitable principles. Hudson v. Scott, 125 Ala. 172, 177, 28 South. 91, among others.
If the plaintiff’s theory of completely ■consummated gift was sustained, then the subject of the gift, so consummated, was not assets of the estate of Thames, and hence Liles individually, not in his representative capacity, was liable in the premises. Campbell v. American Bonding Co., 172 Ala. 458, 55 South. 306.
Treating first the inquiry whether the asserted gift to the plaintiff, the donee, of the fund in the “savings account” was consummated, thereby divesting the donor of the title thereto, the undisputed evidence in the record requires the conclusion that, so far as Thames’ intention to make gift to plaintiff of the sum in the “savings account” was concerned, Thames intended to give that fund to the plaintiff. It also appears conclusively that plaintiff intended to accept the donation if it was otherwise consummated. The particular issue contested was and is whether Thames accomplished his intent to make gift of that fund to Mrs. Goodson through an' appropriate and essential delivery thereof, and the solution of this issue depends, in turn, upon the inquiry whether Thames’ acts in the premises effected such 'delivery of this fund or its symbol to the asserted donee as irrevocably invested the donee with the possession and control thereof. Jones v. Weakley, 99 Ala. 441, 444, 12 S.outh. 420, 19 L. R. A. 700, 42 Am. St. Rep. 84. In respect of the doctrine to which Jones v. Weakley (decided 1892) is just cited, this court is not now disposed to enter upon a reconsideration with a view to conforming the pertinent rule in this jurisdiction to that which may elsewhere prevail.
That there may be an effective constructive or symbolic delivery, consummating a gift, causa mortis or inter vivos, of money, chattels, or choses in action is generally accepted. 28 C. J. pp. 636-638, and notes, particularly note 12, citing decisions of this court. While affirming that the pass book involved in Jones v. Weakley was not a pass book of the savings bank type, the court, in the process of necessary discrimination, declared that a “pass book issued by a savings bank * * * rests on a peculiar footing;” that “such a book is the record of the customer’s account, and its production authorizes control of the deposit;” that “like a key of a locked box, its [i. e., the pass book’s] delivery is treated as a delivery of all it contains;” that, if a savings bank pass book is delivered to the asserted donee, “accompanied by the declared intention” of the asserted donor “to give,” there is consummated a “valid gift causa mortis” of the fund of which the savings bank pass book is “the evidence,” provided, of course, the donee accepts the donation. According to Jones v. Weakley there is no material distinction, as respects the essential act of delivery, between gifts inter vivos and gifts causa mortis. Upon occasion there are, however, points of difference between gifts inter vivos and gifts causa mortis (28 G. J. 622); but the questions now under consideration do not require for their proper decision recourse to those distinctions.
Notwithstanding implications to the contrary in Jones v. Weakley, this court, in Venturi v. Silvio, 197 Ala. 607, 73 South. 45, decided that there is no material difference between a savings department conducted by a bank of issue, discount, and deposit, doing a commercial business, and a savings bank conducted strictly or exclusively .as such. The latter case pronounced to an effect more consonant with sound conclusion than the implications to the contrary in Jones v. Weakley.
The relation Thames bore to the Opp bank, in respect of the fund in the. savings account, was that of creditor to the bank. The book issued to him evidenced that relation and the amount of the bank’s indebtedness to Thames. According to the accepted doctrine of Jones v. Weakley, which we have summarized above, the delivery of the “savings account book” to Mrs. Goodson, accompanied by the statements the witnesses attribute to Thames at the time, manifested his intent to make gift to her of the fund symbolized by the “savings account book.” Intention will not alone suffice to consummate a gift. Acts must accompany as well as illustrate the intention manifested. The ■ donor “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.”, Jones v. Weakley, supra. But the requisites to an effective gift may, as has been stated, be afforded by a' symbolic delivery.
But for the rules and regulations printed on the “savings account book,” quoted in the statement of the case ante, the discriminative pronouncement of Jones v. Weakley, with respect to such pass books, would cast the conclusion in plaintiff’s favor. It is conceded by the respective counsel i;hat these rules and regulations were elements of the contract between Thames and the bank (7 C. J. <p. 864); this notwithstanding these rules and regulations were' not shown to have been formally adopted by the bank’s authorities. The appeal is, however, considered in the present aspect upon the basis of the stated concession by the respective counsel.
Consonant with the satisfactory and applicable conclusions prevailing with the New York Court of Appeals in Ridden v. Thrall,
125 N. Y. 572, 26 N. E. 627, 629, 11 L. B. A. 684, 21 Am. St. Rep. 758, in interpretation o£ similar regulations to those here involved, this court is of the opinion that none of the regulations in question apply to qualify or to condition the consummation of a gift inter vivos through effectual symbolic delivery of the fund by the actual delivery of the “savings account book” to the donee by the donor. Of the regulations reproduced in the statement, those pertinent to the present inquiry (particularly in paragraph 7) relate to withdrawals, partial or otherwise, of the savings deposit, and not to the exercise by the depositor, creditor of the bank, of his right to effect a gift or other disposition of his demand against the bank.
“This by-law,” to quote the presently apt deliverance in Ridden v. Thrall, supra,' “requires an order or power of attorney when some one seeks to draw money for the depositor or the depositor’s money. But the depositor can draw the money without making an order, simply by the presentation of the deposit book, and so can any owner of the book. Suppose the plaintiff had purchased the book, and had thus become the «absolute owner thereof. He could have drawn the money as owner on presentation of the book, and the bank could not have required, as a condition of payment, that he should procure a power of attorney or an order from one having no interest, legal or equitable, in the deposit. The owner in such a case should produce satisfactory evidence of his ownership of the book, and if the bank refused to pay he would be obliged to establish such ownership by any competent evidence, and nothing more; and his rights as purchaser would be no greater than his rights as donee.
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McCLELLAN, J.
(after stating the facts as above),
The form of the action, money
had and received, was well chosen. It is equitable in nature; and in that character of action the right of the plaintiff, in equity and good conscience, to recover is to be determined upon equitable principles. Hudson v. Scott, 125 Ala. 172, 177, 28 South. 91, among others.
If the plaintiff’s theory of completely ■consummated gift was sustained, then the subject of the gift, so consummated, was not assets of the estate of Thames, and hence Liles individually, not in his representative capacity, was liable in the premises. Campbell v. American Bonding Co., 172 Ala. 458, 55 South. 306.
Treating first the inquiry whether the asserted gift to the plaintiff, the donee, of the fund in the “savings account” was consummated, thereby divesting the donor of the title thereto, the undisputed evidence in the record requires the conclusion that, so far as Thames’ intention to make gift to plaintiff of the sum in the “savings account” was concerned, Thames intended to give that fund to the plaintiff. It also appears conclusively that plaintiff intended to accept the donation if it was otherwise consummated. The particular issue contested was and is whether Thames accomplished his intent to make gift of that fund to Mrs. Goodson through an' appropriate and essential delivery thereof, and the solution of this issue depends, in turn, upon the inquiry whether Thames’ acts in the premises effected such 'delivery of this fund or its symbol to the asserted donee as irrevocably invested the donee with the possession and control thereof. Jones v. Weakley, 99 Ala. 441, 444, 12 S.outh. 420, 19 L. R. A. 700, 42 Am. St. Rep. 84. In respect of the doctrine to which Jones v. Weakley (decided 1892) is just cited, this court is not now disposed to enter upon a reconsideration with a view to conforming the pertinent rule in this jurisdiction to that which may elsewhere prevail.
That there may be an effective constructive or symbolic delivery, consummating a gift, causa mortis or inter vivos, of money, chattels, or choses in action is generally accepted. 28 C. J. pp. 636-638, and notes, particularly note 12, citing decisions of this court. While affirming that the pass book involved in Jones v. Weakley was not a pass book of the savings bank type, the court, in the process of necessary discrimination, declared that a “pass book issued by a savings bank * * * rests on a peculiar footing;” that “such a book is the record of the customer’s account, and its production authorizes control of the deposit;” that “like a key of a locked box, its [i. e., the pass book’s] delivery is treated as a delivery of all it contains;” that, if a savings bank pass book is delivered to the asserted donee, “accompanied by the declared intention” of the asserted donor “to give,” there is consummated a “valid gift causa mortis” of the fund of which the savings bank pass book is “the evidence,” provided, of course, the donee accepts the donation. According to Jones v. Weakley there is no material distinction, as respects the essential act of delivery, between gifts inter vivos and gifts causa mortis. Upon occasion there are, however, points of difference between gifts inter vivos and gifts causa mortis (28 G. J. 622); but the questions now under consideration do not require for their proper decision recourse to those distinctions.
Notwithstanding implications to the contrary in Jones v. Weakley, this court, in Venturi v. Silvio, 197 Ala. 607, 73 South. 45, decided that there is no material difference between a savings department conducted by a bank of issue, discount, and deposit, doing a commercial business, and a savings bank conducted strictly or exclusively .as such. The latter case pronounced to an effect more consonant with sound conclusion than the implications to the contrary in Jones v. Weakley.
The relation Thames bore to the Opp bank, in respect of the fund in the. savings account, was that of creditor to the bank. The book issued to him evidenced that relation and the amount of the bank’s indebtedness to Thames. According to the accepted doctrine of Jones v. Weakley, which we have summarized above, the delivery of the “savings account book” to Mrs. Goodson, accompanied by the statements the witnesses attribute to Thames at the time, manifested his intent to make gift to her of the fund symbolized by the “savings account book.” Intention will not alone suffice to consummate a gift. Acts must accompany as well as illustrate the intention manifested. The ■ donor “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.”, Jones v. Weakley, supra. But the requisites to an effective gift may, as has been stated, be afforded by a' symbolic delivery.
But for the rules and regulations printed on the “savings account book,” quoted in the statement of the case ante, the discriminative pronouncement of Jones v. Weakley, with respect to such pass books, would cast the conclusion in plaintiff’s favor. It is conceded by the respective counsel i;hat these rules and regulations were elements of the contract between Thames and the bank (7 C. J. <p. 864); this notwithstanding these rules and regulations were' not shown to have been formally adopted by the bank’s authorities. The appeal is, however, considered in the present aspect upon the basis of the stated concession by the respective counsel.
Consonant with the satisfactory and applicable conclusions prevailing with the New York Court of Appeals in Ridden v. Thrall,
125 N. Y. 572, 26 N. E. 627, 629, 11 L. B. A. 684, 21 Am. St. Rep. 758, in interpretation o£ similar regulations to those here involved, this court is of the opinion that none of the regulations in question apply to qualify or to condition the consummation of a gift inter vivos through effectual symbolic delivery of the fund by the actual delivery of the “savings account book” to the donee by the donor. Of the regulations reproduced in the statement, those pertinent to the present inquiry (particularly in paragraph 7) relate to withdrawals, partial or otherwise, of the savings deposit, and not to the exercise by the depositor, creditor of the bank, of his right to effect a gift or other disposition of his demand against the bank.
“This by-law,” to quote the presently apt deliverance in Ridden v. Thrall, supra,' “requires an order or power of attorney when some one seeks to draw money for the depositor or the depositor’s money. But the depositor can draw the money without making an order, simply by the presentation of the deposit book, and so can any owner of the book. Suppose the plaintiff had purchased the book, and had thus become the «absolute owner thereof. He could have drawn the money as owner on presentation of the book, and the bank could not have required, as a condition of payment, that he should procure a power of attorney or an order from one having no interest, legal or equitable, in the deposit. The owner in such a case should produce satisfactory evidence of his ownership of the book, and if the bank refused to pay he would be obliged to establish such ownership by any competent evidence, and nothing more; and his rights as purchaser would be no greater than his rights as donee. He has the same right to enforce payment that he would have had if he had been the donee of any nonnegotiable chose in action, or a certificate of deposit or unindorsed note. He could establish his right to payment in such a case by any proof showing that he was the absolute legal or equitable owner.”
Smith v. Brooklyn Savings Bank, 101 N. Y. 58, 4 N. E. 123, 54 Am. RTep. 653, is relied upon by appellee to sustain the insistence that, since the regulations (particularly that numbered 7) made a condition to appropriation of the savings fund by one other than the depositor, such third person should produce either an order or a “power of attorney duly authenticated,” and that, since Thames did not so equip the plaintiff to avail of or appropriate the fund, no irrevocable symbolic delivery was consummated; there remaining in Thames the right to defeat the donation, notwithstanding the delivery of the book, by withholding the authorization der scribed in regulation 7.
In Smith v. Brooklyn Savings Bank, supra, the action was by-the depositor against the Savings Bank to recover money paid out to a third person whose only right to withdraw the fund was the possession of the pass book, i The court construed the bank’s own regulation as denying the right of the bank to thus-discharge its debt to the depositor; the court restricting the bank’s right to discharge its obligation to the depositor to the methods prescribed in the regulations, framed by the bank, which contemplated, in the depositor’s absence, payment by presentation of the pass book and a written authority from the depositor. There was no suggestion that the third person in possession of the pass book had acquired it, as the evidence of the bank’s obligation to the depositor, through otherwise perfect gift by or purchase from the depositor. In the later deliverance on Bidden’s Appeal, supra, the court evidently did not regard the Smith Case as either applicable or authoritative on the materially different inquiry presented by this appeal.
According to the undisputed evidence, the gift to plaintiff of the fund at savings (with its interest) was consummated; and that fund was not assets of the Thames estate.
Under the apt authority of Jones v. Weakley, supra, it must be held that the other fund, in Thames’' “checking account,” was not effectually delivered, symbolically or otherwise, as a gift causa mortis. The writing reproduced in the statement ante did not preclude Thames from subjecting that fund to check; and, hence, what Thames did, by the mentioned writing or otherwise, was, manifestly, “not the best delivery available under the circumstances.”
The court erred in giving the general affirmative charge in defendant’s favor on the whole case.
The judgment is reversed, and the cause is remanded.
Beversed and remanded.
ANDERSON, O. J„ and SOMERVILLE and THOMAS, JJ., concur.