In Re Lewis' Estate , 194 Miss. 480 ( 1943 )

DISSENTING OPINION. If the chancellor was correct in holding that the money here deposited with the Bay Springs Bank belonged, when deposited, to W.C. Lewis, and I am not prepared to say that he erred in so holding, this case is ruled by Godwin v. Godwin, 141 Miss. 633,107 So. 13, which case should not be overruled for two reasons: (1) It was correctly decided, and, if not, (2) no mischief of any consequence results from it.

One of the essential elements of a gift of personal property is the delivery, actual or symbolic, of the property to, and its acceptance by, the donee. It is not essential that the donor deliver the property himself to the donee, he may deliver it to another to be given the donee, who may make the actual delivery unless his authority so to do is revoked by the owner of the property. The deposit of money in a bank by the owner thereof in the name of another without more is insufficient to constitute a gift thereof to the one in whose name the money was deposited. Smith v. Taylor, 183 Miss. 542, 184 So. 423. This remains true although the bank is authorized to permit the one in whose name the deposit is carried to check on it, the right so to do remaining also in the one who made the deposit, for in that event the depositor has not surrendered his control over the deposit. Under such circumstances a gift to the person in whose name the deposit is carried becomes complete only to such portion of the deposit as the bank may deliver to him before its authority so to do is revoked by the one who made the deposit. Such is the case here. All I have here said is so elementary that no authority is necessary therefor, but if the Godwin case was wrongly decided, no mischief results from it for the reason that if two persons wish to carry an account in a bank in both of their names, subject to the check of either, with the right of survivorship, all they will have to do is to sign one of the bank joint account cards referred to in the opinion in chief and approved in Stephens v. Stephens, 193 Miss. 98, 8 So.2d 462, a very simple and easy thing to do.