KURTZ V. SMITHER. case is whether Charles made a valid gift causa mortis, to his brother Robert, of the deposit in the Bank of Com merce. The deposit would seem to have been a special one, for it was in evidence that Charles usually deposited in the Erie County Savings Bank. For the deposit a certificate was taken out, payable to Charles' order on the return of the certificate properly endorsed. The certificate was a contract of the bank with Charles, in the nature of a promissory note (Barnes v. Ontario Bank, 19 N. Y., 152). And it was capable of being transferred by delivery only, without endorsement as a donatio causa mortis (Westerlo v. Dewitt, 36 N. Y., 340). So that, if the deceased had procured the certificate from the store, and delivered it to his brother, with intent to make a gift of it in view of his approaching death, the gift would have been executed and valid. But instead of doing that, Charles, without mentioning the certificate, gave his brother a check on the bank for the whole amount of his deposit. This was a special deposit-a particular fund-the only one the donor had in the bank, and for which a certificate was outstanding, and, the check being for the whole of the deposit, it would seem to operate as an assignment of the fund (Harris v. Clark, 3 N. Y., 93; Att'y-Gen. v. Ins. Co., 71 N. Y., 330; Yates v. Grover, 1 Ves. J., 280; Morton v. Naylor, 1 Hill, 585). In Gray v. Barton (55 N. Y., 68), GROVER, J., says: "In such cases (Westerlo v. DeWitt, supra; and the case at bar), the thing given is the debt and the evidence." And LEONARD, J., in Cooper v. Burr (45 Barb., 33), says: "The situation, relation and circumstances of the parties and of the subject of the gift may be taken into VOL. I.-26 KURTZ V. SMITHER. consideration, in determining the intent to give, and the fact as to delivery; a total exclusion of the power or means of resuming possession by the donor is not necessary:" citing Grangiac v. Arden (10 Johns., 293); Penfield v. Thayer (2 E. D. Smith, 305); and Allen v. Cowan (23 N. Y., 502). Grymes v. Hone (49 N. Y., 17) is a case in point. There the donor, being the owner of 120 shares of stock, included in one certificate, in the Bank of Commerce in New York city, made an assignment in writing, in a separate instrument, of twenty shares of the stock to the plaintiff, and delivered it to his wife, to be given to the plaintiff on his death. Judge PECKHAM says: "The equitable title to this stock is thus passed by the assignment, and it was not necessary to hand over the certifi cate. A court of equity will compel the donor's representatives to produce the certificate, that the title may be perfected." This is a strong case, and it is aided in the case at bar by the fact that the certificate itself may be said to have been presumably in the possession of the donee. It was in a drawer in his store. In Stevens v. Stevens (5 T. & C., 87) cited in Story's Equity Jur. (12th ed., § 606, note), where the gift mortis causa of a promissory note was in question, MULLEN, P. J., who wrote the opinion of the court, says: "The small note was in his (donee's) possession, that is, it was in the bureau in his house and presumably accessible to him. I think he was entitled to the small note or its avails." The property sought to be given was the debt of the bank to Charles Smither. The certificate of deposit was not the debt; it was only the evidence of the debt in KURTZ V. SMITHER. writing. The instrument was negotiable, but it had not been negotiated. The debt and the written evidence were still the property of the donor when he made the gift. The donor was near his death. His mind was clear; his intention was undoubted; he wanted to give the deposit to his brother, and, to carry out his intent, he directed the bank to pay his brother the amount of his deposit, the debt, the substance, the particular fund; and is the fact that he failed in that supreme moment to think of the evidence of the debt, and to manually deliver it with his gift-is that to defeat the manifestly clear intention of the dying man? I think not. I think the check is an equitable assignment of the debt, and carries the certificate with it, and is to be held as a valid gift causa mortis of the deposit. The reason for the strict rules which have been set about gifts of this nature is to prevent fraud and imposition (2 Kent, 444). Here, there is no fraud or imposition, and where the reason for the rule does not exist the rule itself ought not to be applied (Ch. J. SAVAGE, in Mechanics' Bank v. Griswold, 7 Wend., 168). A decree will be entered in accordance with this opinion. GILMAN V. HEALY. KINGS COUNTY.-HON. W. L. LIVINGSTON, SURROGATE. December, 1881. GILMAN V. HEALY. In the matter of the judicial settlement of the account of AARON HEALY, an executor of, and trustee under the last will and testament of NATHANIEL GILMAN, JR., deceased. A direction for the accumulation of rents, income, etc., of real or personal property "for the benefit of one or more minors then in being," must, in order to be valid under 1 R. S., 726, § 37, and id., 773, § 3, provide for an accumulation exclusively for the benefit of the minors. Under a valid direction for the accumulation of rents and income for the benefit of a minor, the accumulation not only vests in the minor, but, on his attaining majority, vests in him absolutely, so as to be no longer liable to be divested. Testator, who left both real and personal property, by his will, after making certain bequests, gave all the residue of his property, real, personal and mixed, to his executors, in trust, and by implication directed the accumulation of a portion of the income and profits during the minority of his children, respectively. He then gave a vested remainder in the trust property to his children, to take effect in possession at the end of the trust term, subject to being divested as to each child by his or her death without issue during said term; in case all his children should die without issue during said term, he gave and devised the residue, one quarter to his widow, if then living, and the balance to his brothers and sisters then living or the issue of any that might be dead, in equal proportions. All of the children having died during the trust term, without issue, one during and the others after the expiration of minority, a sister of testator claimed an interest in the accumulated income which accrued before the death of the last survivor of the children. Held, that such accumulations vested absolutely before the substituted limitation took effect, and that the sister of testator took a share of the corpus, only, of the estate. GILMAN V. HEALY. As to whether, if all the children of the testator had died without issue during their minority, the accumulations would have passed to the substituted legatees and devisees, quære. Gilman v. Reddington, 24 N. Y., 9; Meserole v. Meserole, 1 Hun, 66— distinguished. TESTATOR, by the residuary clause of his will, devised and bequeathed the residue of his estate, real, personal and mixed, to his executors in trust to "manage" and apply the same or the income thereof, or so much of the estate or income as they should see fit, in the exercise of a sound discretion, to the education and support of his three infant children, or such of them as should survive, or of the issue of any who might die, until the two youngest should attain the age of thirty years, or until those two children should be dead, if they should die under that age; at which time the trust estate was directed to "be paid, conveyed or made over" to the said three children, or such of them as should then survive, or to the issue then living of such as might be dead, in equal proportions, so that the issue might have the share of the parent; it was further provided that, if all the children should be dead at the period of distribution without issue then living, the said residuary estate should go to the testator's widow and to his brothers and sisters and their issue in certain proportions specified. The estate consisted of both real and personal property. The youngest of the children died after the death of the testator, at the age of two years. The other two died during the trust term, after attaining majority, without leaving issue. Upon the judicial settlement of the account of the executor and trustee, Anna K. Gilman a sister of testator having interposed objections to the ac |