99 N.Y.S. 989 | N.Y. App. Div. | 1906
John C. Boof and Sarah Ann Boof were husband and wife, and resided at Theresa, Jefferson county, FT. Y. They had both been married before, but neither had any children. They both had made deposits in the Jefferson County Savings Bank, and a passbook had been issued to each of them. Sarah Ann Boof had a balance upon her book of $911.26, and John C. Boof had a balance upon his
“ Theresa, N. Y., Jany. 8, 1896.
“ To Jefferson Co. Sewings Bank:
“ Gentlemen.— We, the undersigned, owners of bank books No. 23,661 and No. 25,472, issued by your bank, desire to have the accounts therein merged into an account running to John 0. Roof or Sarah Ann Roof or to the survivor of them. Our object being that in case of the death of either, the other may draw the whole amount.
“ Witnesses: JOHN C. ROOF.
“ Hart E. Countryman. SARAH ANN ROOF.
■ “ Lizzie Countryman.”
There is no suggestion in the evidence that the foregoing paper (which will hereafter be called Exhibit 10) was procured to be made by undue influence' or fraud, or that there was any improper conduct on the part of those represented by the defendant to procure the same to be executed, nor is there any suggestion that the parties thereto were not entirely competent to make such disposition of their property as they saw fit.
Two days after the execution of such paper Sarah Ann Roof was stricken with paralysis and was confined to her bed until the twentieth day of January, when she died. A few days after the paper had been executed John C. Roof delivered it to Hr. Kelsey, an attorney and counselor of this court, residing at Theresa, N. Y., and instructed him to forward it to the Jefferson County Savings Bank, in order that effect might be given to the same, which Hr. Kelsey did by letter dated January 13,1896, of which the following is a copy:
“ Theresa, N. Y., Jamy. 13, 1896.
“ To Jefferson County Savings Bank :
“Gentlemen.— By request of John O. Roof and Sarah Ann Roof, his wife, I send herewith a paper signed by them and which*629 will inform you of their wishes in reference to their deposits in your bank. Mr. Eoof brings me the paper as you see it, and the signatures thereto are genuine. I am well acquainted with these old people and have been their attorney for a long time. If their accounts can be merged, as they indicate, please write me by return mail, and if their bank books are wanted to do this, I will either send or bring them to you.
“ Bespectfully yours,
“O. A. KELSEY.”
Immediately upon the receipt of such letter the bank changed the account of Sarah Ann Eoof upon its books so as to read, “ Sarah Ann Eoof and John 0. Eoof. See Signature Book,” and changed the account of John C. Eoof so as to read, “John 0. Eoof and Sarah Ann Eoof. See Signature Book,” pasted Exhibit 10 in the signature book, and under date of January fifteenth the assistant treasurer of the bank wrote to Mr. Kelsey the following letter:
“ Wateetown, F. Y., Jany. 15, 1896.
“ 0. A. Kelsey, Esq.,
Theresa, F. Y.:
“Dear Sib.— Yours of the 13th at hand, and have pasted the paper signed by J. C. Eoof and Sarah Ann Eoof into signature blc. and think advisable not to merge the same into one account but keep them separate. Think that paper is all right; anyway it shows their wishes in the matter. When the P. books come will minute in each to see signature book before paying.
“ Yours Besp.,
“A. T. E. LAFSIFG-,
“ Assi. TrP
All this, as we have seen, took place during the lifetime of Sarah Ann Eoof. As matter of fact the passbook of Sarah Ann Eoof was not presented to the bank, and no change upon it was made until after her death, and on the 13tli day of February, 1896, when Mr. Kelsey came to the city of Watertown with John G. Eoof and presented both passbooks to the bank. Exhibit 10 was then in the signature book where it had previously been pasted, and the paying teller added the name “John C. Eoof” to Sarah Ann Eoof’s passbook, but no change was made in the passbook of John 0, Eoof,
This is the second trial of the action. Upon the first trial the evidence was conflicting as to whether Exhibit 10 was delivered to the bank and the changes referred to made upon its books prior to the death of Sarah Ann Roof. The learned court presiding at such trial determined in effect that such circumstance was immaterial for the reason that the execution and delivery of the instrument as between John C. Roof and Sarah Ann Roof effected a transfer to the survivor of the moneys represented by their respective passbooks, and that it was immaterial as between them or their representatives whether such instrument was delivered to and the changes made on the books of the bank prior to or after the death of Sarah Ann Roof, and so the learned trial court nonsuited the plaintiff, and judgment was entered accordingly in defendant’s favor. From such judgment an appeal was taken to this court, where the judgment was in all things affirmed. (90 App. Div. 613.) From such judgment of affirmance an appeal was taken to the Court of Appeals, where the judgment was reversed (180 hi. Y. 138), solely upon the ground, as we understand the decision, that the instrument executed by John C. Roof and Sarah Ann Roof (Exhibit 10) was ineffectual to transfer the moneys represented
By the record now before us it is established without contradiction that the paper or instrument referred to was delivered to the savings bank at least five days prior to the death of Sarah Ann Eoof, and was then acted upon by the bank as above indicated, and in such manner as that the entries in the books of the bank were changed so as to give effect to the wishes and intention of the parties to such instrument as expressed therein.
All that having been done prior to the death of Sarah Ann Eoof, as we understand the decision of the Court of Appeals, upon her death leaving her husband, John C. Eoof, her surviving, he became entitled to her passbook and to all moneys represented thereby deposited in her name in said savings bank. The Court of Appeals in the prevailing opinion said: “ As we have seen, the paper was an order merely and was executory until it was presented to the bank and the deposits were changed in accordance therewith. It is conceded that it was subsequently taken to the bank by John C. Eoof and the changes made so far as the deposit of Mrs. Eoof was concerned, but was this change made during her lifetime? Upon this subject considerable evidence was taken, and if the fact is material it doubtless became a question for the jury to determine. This brings us to a consideration of the question as to whether the order is deemed to be revoked by the death of Mrs. Eoof before it was delivered to the bank and the change in the deposits made. The order was executory until its delivery to the bank and the changes in the deposits were made. It, consequently, could be revoked by either party at any time before the order had been com
The evidence now conclusively establishes that such order was delivered to and acted upon by the bank prior to the death of Sarah Ann Roof, and, therefore, as it seems to us, the essential ingredient, as pointed out by the Court of Appeals, which absolutely entitles the defendant to retain the passbook and to recover the moneys represented thereby, is now conclusively established in this case. In concluding the majority opinion of the learned Court of Appeals it was said: “ We conclude that the question as to whether the order was delivered to the savings bank during the lifetime of Mrs. Roof is material, and under the evidence the question as to whether it was so delivered was for the jury, and that the exception taken by the appellant to the nonsuit raises an error of law which requires a reversal of the judgment.”
The facts presented by the record upon this appeal are precisely the same as before, except, as we have seen, it is now established without contradiction that the order was presented to the bank and was acted upon by it in the manner indicated prior to the death of Sarah Ann Roof; and the only criticism by the Court of Appeals of the former judgment was that the evidence upon that issue was conflicting, and, therefore, it was held that error was committed in granting defendant’s motion for a nonsuit.
If we have correctly interpreted the effect and meaning of the decision of the Court of Appeals upon the former appeal in this case, further discussion is unnecessary to demonstrate that the judgment appealed from must be reversed.
It is, howmver, urged by the able counsel for the respondent that a delivery of the passbook of Sarah Ann Roof to the savings bank, and action by it indicating an intention to change her account prior to her death, was essential in order to transfer such passbook and account to John C. Roof upon her death, and that there is nothing in the decision of the Court of Appeals which is in conflict with that contention. As an original proposition we think the contention is untepable, A passbook issued by a savings bank, even when
It follows that the judgment appealed from should be reversed and a new trial granted, Avith costs to appellant to abide event.
All concurred.
Judgment reversed and new trial ordered, with costs to the appellant to abide the event,