Clark v. Young , 246 Ala. 529 ( 1944 )

We base our concurrence in the conclusion reached in the opinion of BROWN, J., upon the basis of the finding that the certificate was never delivered to Mrs. Young but was retained in possession of Mrs. Hunter's agent, she reserving and retaining exclusive control thereof and the indebtedness it represented, and had no intention to create a present interest in the instrument for Mrs. Young. We regard that as the controlling incident to determine the rights of Mrs. Young. The great majority of cases are in accord with this view. 103 A.L.R. 1124; 48 A.L.R. 205-206; 7 Amer.Jur. 304, § 431. The terms of the certificate of deposit alone are not always controlling. But it may be interpreted in respect to whether a present interest was intended by all the circumstances attending it. Hill v. Hill et al., 216 Ala. 435, 113 So. 306. We regard this as the ruling distinction between the instant case and those supporting the claims of such a donee co-payee on the contract or trust theory. Those cases either relate to a situation where the circumstances did not manifest such an intent, as in Re Estate of Staver, 218 Wis. 114, 260 N.W. 655, or where the intention was not given important consideration.

In the case of Hicks v. Meadows, 193 Ala. 246, 69 So. 432, the instrument did not purport to give the co-payee a present interest, but only one effective at the death of the depositor. It was without consideration as to the co-payee, was testamentary in nature and not a gift causa mortis or inter vivos because there was no delivery. There must be a present interest intended to be conferred if there was no such consideration, or it must be done by a will. A delivery is one way to manifest an intent to create a present interest. While an absence of delivery alone sometimes manifests an intent not to do so, it may be so inferred from all the attending circumstances, notwithstanding an absence of such delivery. We are not here dealing with the legal title to a negotiable instrument, and right to sue on it at law, but with rights to be determined on equitable principles.