THE ROMAN CATHOLIC ORPHAN ASYLUM vs. STRAIN.

security. And further, these securities are almost invariably created by third persons, and not by the husband.

The case in 10 Johns. R., p. 51, quoted by the opposing counsel, was that of a bond given for the maintenance of husband and wife "during their joint and several lives." By the condition of the bond, the survivor was specifically named as entitled to the benefit of the bond. Also, in the case in 4 Verm. p. 336, "the wife was shown to be the meritorious cause of the note, and the interests of creditors of the estate were not involved." And so of all the other cases quoted by the opposing counsel.

The following cases are offered as relating to the subject:

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Money in the hands of a wife at the decease of her husband, earned and received by her before the marriage, or given to her by her husband afterwards, passes to his administrator." (Washburn vs. Hall, 10 Pick., 429.) Same doctrine in 2 Conn. Rep., 564; 14 Conn., 99; 1 Hill S. C., 191.)

"Money deposited in a bank by a married woman, who with her husband's consent lives separate from him, and is not supported by him, is his money, although it is deposited in her name." (Ames vs. Chew., 5 Met. 320.)

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Money paid to the wife is paid to the husband, whether he ever received it or not." (White vs. White, 2 How. Miss., 931.)

The case of Dacy vs. Chemical Bank, 2 Hall, 550, cited by the opposing counsel, was decided on the question of agency, and not of survivorship; and the inference is, that the bank would have been held responsible if it had been shown that they knew the depositor to have been a married woman.

"A note payable to a feme covert, is payable to her husband, who alone has power during his life to enforce payment, or discharge the demand; and after his death it will go to his executor or administrator, and not to the wife." (Shuttlesworth vs. Noyes, 8 Mass., 229.)

THE ROMAN CATHOLIC ORPHAN ASYLUM vs. STRAIN.

"A note made payable to a married woman, is in law a note to the husband, and becomes instantly his property, and her endorsement transfers no property in the note." (Savage vs. King, 5 Shep., 301; See Chitty on Bills, p. 23, &c.)

"A direct transfer from husband to wife, without a trustee, conveys nothing, though it respects the wife's interest." (Parker vs. Stuckert, 2 Miles, 278.)

"No agreement between husband and wife can be made during coverture which in legal effect will transfer, by way of gift or sale, any property from the husband to the wife." (15 Conn., 587.)

The money ought to be considered as a part of the husband's estate, and should be accounted for and distributed as such.

THE SURROGATE. The intestate, William Harkin, deposited with the Rt. Rev. Bishop Hughes $1,200, in the joint names of himself and wife, taking as evidence of the deposit a certificate stating that "William and Ellen Harkin have $1,200 on deposit with the Rt. Rev. Bishop Hughes, to draw interest at five per cent. and to be returned at any time after two weeks' notice." Two other sums of $100 each, were subsequently deposited in the same manner. Ellen Harkin survived her husband; and the point is now submitted, whether the sums so deposited, are to be accounted for as part of the estate of her husband, or belonged a moiety to each, or to her by right of survivorship.

It appears that the deposits were made in this manner for a series of years, the first certificate being in the same form; and when the amount reached $1,200, it was surrendered and a new certificate issued. The account in the books of the Bishop, was also kept in the names of husband and wife, in accordance with the certificate. There is no evidence beyond the certificate, except the impression of

THE ROMAN CATHOLIC ORPHAN ASYLUM vs. SLRAIN.

the Bishop's Secretary, that either party came to make the deposits. He also adds, that this joint deposit is a common, though not a usual form of depositing.

I must, therefore, decide the case upon the face of the certificate, which recites that William and Ellen Harkin had deposited $1,200, to draw interest at five per cent., and to be returned at any time after two weeks' notice. In form it was a joint deposit, and if the depositors had not been husband and wife, there can be no doubt that such would have been its legal character.

The presumption of such a form is, that it was not without design. The transaction itself, the manner in which the deposit was made and the certificate taken, afford satisfactory evidence of the object or purpose. In Christ's Hospital vs. Budgin, 2 Vernon, 683, the husband had lent out money in the names of himself and his wife, upon bonds and mortgages taken in their joint names. The Lord Keeper regarded the wife as a joint purchaser, and as entitled to the securities by survivorship. In Dummer vs. Pitcher, 5 Simon, 35, a testator, before making his will, transferred two sums of bank annuities into the names of himself and wife, and afterwards bequeathed all his funded property to trustees. He subsequently purchased further sums in the stocks, in the names of himself and his wife, and died in her life-time, having no stock except that abovementioned, exclusive of which his property was not sufficient to pay his legacies. It was held by Sir Lancelot Shadwell and affirmed on appeal by Lord Brougham, that the wife by surviving her husband became absolutely entitled to the sums of stock, there being "nothing to show that the husband intended that the transfers should have any operation but what they legally had." In Coates vs. Stevens, 1 Yo. & Coll., Exqr. R., 66, the testator bequeathed £2,200 stock, "his property" standing in the joint names of himself and wife; and Lord Abinger held that the stock was the absolute property of the wife surviving, saying, "I am of opinion, upon all the decisions, that this is the absolute

THE ROMAN CATHOLIC ORPHAN ASYLUM vs. STRAIN.

property of the defendant (the wife.) The transfers were made to the husband and wife in their joint names, and there is no evidence to show that these transfers were coupled with any trust." In that case, the authorities bearing on the question were copiously cited, and among them Lord Eldon's decision, in Wilde vs. Wilde, where he said, the purchase of stock by the husband in the joint names of himself and his wife, was prima facie a gift to her, in the event of her surviving, unless evidence was produced of contemporaneous acts showing a contrary intention. (See Craig vs. Craig, 3 Bar. Ch. R., 104; Richardson vs. Daggett, 4 Verm. R., 336; Draper vs. Jackson, 16 Mass. R., 480; Lockwood's Bright's Husband and Wife, 1, p. 32; Wms. on Exrs., 719.) In the present case, it is urged that the wife, in bequeathing the deposit in question, by describing it as the property of her husband, has attached that character to it. I think not. Those are mere words of description; and in any event the force of a possible inference to be drawn from such a misdescription is neutralized, if not overcome, by the fact she disposes of it in her will, as if it were her own property.

The characteristic features of this transaction are analogous to those of the cases which I have cited. The deposit is in the nature of an investment: the money is not to be preserved in specie, but to be employed, and interest thereon paid by the depositary. The investment is made with the privity of the husband, in the name of himself and wife; and the certificate of the deposit or investment, is taken in the same names. This was his own act, and establishes a gift to her in case she survived; and he not having recalled it or converted the property into possession in his life-time, and the legal title being in her by survivorship, it is, in the language of Lord Abinger, her "absolute property."

But it is said that at law, gifts from the husband to the wife are void. That relates, however, to direct gifts, not to transactions through the medium of a third person; and, besides, the rule does not prevail in equity, which sup

WEIR VS. FITZGERALD.

ports gifts between husband and wife. (Lucas vs. Lucas, Atk., 271.) There is no claim in this case by creditors, but the struggle is between the representatives of the husband and the legatees of the wife; and I am clearly of opinion that by the mode of investment adopted by the husband, on his decease leaving her surviving, her title to the property was absolute.

WEIR 28. FITZGERALD.

In the matter of proving the last Will and Testament of JOHN BRINCKLEY, deceased.

A WILL contested on the ground of incapacity, undue influence, and invalid execution-admitted to probate. Where the testator was of advanced age, his hearing slightly affected, and his sight very seriously impaired, the circumstances attending the execution of his will should be carefully scrutinized for any traces of imposition or artifice. Kind offices and faithful services tend to influence the mind in favor of the party performing them; and care should be taken not to confound the natural action of the human feelings in this respect, with positive dictation and control exercised over the mind of the testator. The law does not prohibit deaf, dumb, or blind persons from making a will. Defects of the senses do not incapacitate, if the testator possess sufficient mind to perform a valid testamentary act.

The statute does not require a will to be read to the testator in presence of the witnesses, though it is proper to do so when the testator is blind or cannot read.

Besides mere formal proof of execution, something more is necessary to establish the validity of a will when, from the infirmities of the testator, his impaired capacity, or the circumstances attending the transaction, the usual inference cannot be drawn from the formal execution. Additional evidence is required that his mind accompanied the will, and that he was cognizant of its provisions. This may be established by the subscribing witnesses, or by evidence aliunde.

It is not essential that both witnesses should prove that the provisions of the statute, as to the mode of execution, were complied with. Where one witness testified clearly to their performance, and the recollection of the other was vague and indistinct-held, that the proof of execution was sufficient.