193 Mo. App. 290 | Mo. Ct. App. | 1916
The Commonwealth Trust Company (hereafter called the Trust Company) brought its bill of interpleader against Katherine DuMontimer, Margaret K. Reagan, and William L. Fitzgerald, the latter as the executor of the estate of Thomas F. Fitzpatrick, deceased, for the purpose of determining the ownership of a •deposit of $1359.95 in the hands of the Trust Company in its savings department, the right to which was asserted by Katherine DuMontimer, she claiming that the fund was a joint fund belonging to herself and Thomas F. Fitzpatrick as joint owners and that, having survived, she was entitled to the whole of it. Margaret K. Reagan claimed it as sole legatee of Fitzpatrick, and Fitzgerald claimed it as executor under that will, averring that the fund represented moneys earned and saved by Fitzpatrick during his life and deposited by him with the Trust Company from time to time for safekeeping; that he was at all times sole and absolute owner of it and that it was at all times under his dominion and control and so remained up to his death, and on that happening, passed to the executor as part and parcel of the estate of Fitzpatrick. Bringing the fund into court, the Trust Company asked the court to determine the ownership of the fund as between these three parties, each claiming it as above. The will referred to is not in evidence, but it does not appear that there was any specific be
It appears by the evidence in the case that the Trust Company maintained a savings department and that in January, 1912, Thomas F. Fitzpatrick opened a savings account in his own name with the Trust Company. When he opened this account a card was made out for the identification of Fitzpatrick, he signing -it, his place of residence and birth date, occupation, and mother’s name being written on the card. At that time and down to March 4 it appears that Fitzpatrick had bn deposit with the savings department of the Trust Company about $200. On that date Fitzpatrick went to the Trust Company, and stated to Mr. Robert L. Burney, the manager of the savings department, that he wanted to make his account a joint account and add the name of his sister, that is, Katherine DuMontimer, plaintiff in. error, jointly with himself, to it. Therer upon appropriate changes were made in the books of the Trust Company, changing the account from the name of Fitzpatrick to him and Mrs. DuMontimer, and the words “either or survivor to draw” were stamped on .the identification card in purple letters with a rubber stamp. A card was thereupon made out and sent to Mrs. DuMontimer, who then resided in New York, for her signature. This card was apparently signed by her and returned by mail to «the Trust Company. On the card sent to Katherine DuMontimer, at the top of it, are the words printed, “I hereby agree to the by-laws, rules and regulations governing the savings department of Commonwealth Trust Company. Confer with Mr. Delahunt or R. L. B. on this before paying. R. L. B. Either or survivor to draw. ” (R. L. B. are apparently the initials of Mr. Burney.) Following the foregoing is what purports to be the signature of Katherine DuMontimer, her address, place and date
“St. Louis, Mo.,-19 — .
The undersigned hereby agree to and with each other and the Commonwealth Trust Company, to and do hereby open an account with said Commonwealth Trust Company, and authorize, empower and direct said Trust Company to open an account with us in the name of
Thomas F. Fitzpatrick,
Katherine DuMontimer,
payable to either, or the survivor or under such other designation as said Trust Company may employ. And we agree that we are and shall be joint owners of all money deposited or which may hereafter be deposited to the credit of said account, and of all accrued and accruing interest thereon, and that upon the death of either of us the moneys then on deposit to the credit of said account shall become and be the property of the survivor.
“And we are. mutually agreed and hereby notify said Trust Company that each or either of us, or the survivor of us, may at all and any times withdraw and receive from said Trust Company the whole or any part of said moneys now deposited, or which may be hereafter deposited to the credit of said account; that each of us is authorised and empowered to sign our respective names, or the name or names of any or either of us to any receipt, check, draft or other voucher for the money so drawn, and such receipt, check, draft or other voucher? so signed, shall be a full acquittal to said Trust Company for all moneys so withdrawn from said account.
Witnesses:
___? ?
Whether the names of Thomas F. Fitzpatrick and Katherine DuMontimer as they appear here in the
The oral evidence was given by Mr. Robert L. Gurney. He testified, on direct examination, that on or prior to March 4,1912, he was manager of the savings department of the Trust Company and that on or about that date Thomas F. Fitzpatrick came to the banking house of the Trust Company and in his presence stated that he wanted to make his account a joint account and add his sister’s name to it. He was informed that he would have to send a card to his sister to have her sign it; that her name was thereupon added to that of Thomas F. Fitzpatrick on the books of the Trust Company and the card sent to Katherine DuMontimer for her signature, along with a letter advising her of the action of her brother, and was subsequently' returned, in answer to the letter, to the Trust Company by mail. He also testified that on July 2, 1913, the balance in the savings account amounted to $1435.14, and that on December following a credit of $24.81 representing accrued interest was added; that Fitzpatrick withdrew $100 on January 15, 1914, leaving a balance in bank of $1359.95 at the time of his death, which occurred July 26, 1914. This was the amount paid into ourt by the Trust Company on filing the bill of inter-pleader, less certain expenses and costs allowed the Trust Company.
On cross-examination Mr. Gurney testified that he did not charge his memory with every detail of the transaction but remembered it from his acquaintance with Fitzpatrick and from the circumstances attending the matter. All that he recalled was the fact, of Mr. Fitzpatrick being there and making the change and that on that day the Trust Company had written a let
This is substantially all the evidence in the case. Upon its conclusion the trial court, by its judgment,, awarded the fund to William L. Fitzgerald, as executor. Mrs. DuMontimer, filing her motion for new trial and excepting to the overruling of that motion, sued out her writ of error.
To the contrary the learned counsel for defendant in error urges that a joint interest is not created in or a perfected gift made of the savings bank deposit by depositing it in the names of the donor and donee, making it payable to the order of either or to, the survivor, and by having stamped upon the pass book the words “joint owners,” where the donor continues in possession of the pass book and therefor-e retains dominion over the fund, with the right at any moment to-withdraw the whole of the fund; that the words “joint owners” used in the entry in a savings bank pass book of the deposit made by one to the credit of himself and another as joint owners should be construed in a restrictive sense and not as implying absolute ownership.
Other points are made by counsel for defendant in error but it is submitted that the above are sufficient to set out the different theories entertained by counsel.
In addition to these points going to the merits of' the case, it is urged that plaintiff in error did not, by any pleading, put in issue the material allegations of fact made by defendant in error in respect to his claim ' to the fund. Disposing of that we may say that we do
It is further urged that there was no motion for new trial filed, what purports to be such motion, it is claimed, not being sufficiently specific to call the attention of the trial court to the alleged errors committed. "We do not think this is tenable. That motion distinctly challenged the judgment as directly contrary to the law, contrary to the evidence, against the law and the evidence, and that under the law and the evidence it should have been for plaintiff in error. We think this is sufficient (Municipal Securities Corporation v. Kansas City, 265 Mo. 252, l. c. 265, 177 S. W. 856); sufficient at least to have called the attention of the trial court to the errors upon which the party relied, and that is the whole office of a motion for new trial.
The cause, being on interpleader, was tried as in equity. Hence the whole case, both on the law and the evidence is open to us.
In 14 Am. & Eng. Ency. of Law (2 Ed.), p. 1019, it is said:
“ Where one person gives to another a joint interest in property with himself, no delivery to the donee is necessary, the possession of the donor being also that of the donee. . . . Similarly where a man deposited money in a savings bank» to the credit of himself or wife, or the survivor, it was held that this created a joint ownership of the fund, and that the wife was entitled to it after the husband’s death as a gift from him, although she had never had possession of the pass book during his life.”
“Where two persons own jointly a deposit, the survivor becomes vested with the ownership of the entire fund. When one person makes a deposit in a savings bank in the joint names of himself and another, if the depositor’s donative purpose is established, it is usually held to create a joint ownership, and to be a valid gift inter vivos. This result does not follow, however, from the mere fact that a deposit is made in such form; for the depositor may always show that the money was his own and that such was not his intention. And as deposits are frequently made ih this form when there is no intention to create a joint ownership and no donative purpose, the mere form of the. deposit is not enough to establish such intention.
“Where the depositor delivers the pass book té the other with the purpose of making a gift, it is generally conceded that a joint tenancy is created. Some courts refuse to hold such deposits valid as gifts, when the depositor retains the pass book, but by the better rule, if the intent to create a joint tenancy appears, whether the book be delivered or not is of no consequence. This has been explained on the* ground that the transaction creates a contractual relation between the bank and the donee, and while by retention of the pass book the donor still has the power to withdraw the deposit, thereby making the gift of no value, the legal effect of the transaction as a gift becomes complete upon the consummation of the contract which, the bank enters into with both jointly, and which, having the incident of survivorship-, vests the right of action thereon in the survivor.”
Mr Morse in his work on banks and banking, treating of a gift by deposit in the name of the donee, has said: “It is well established that a gift may be made without delivery of the pass book.” [2 Morse on.
' Blasdel, Admr. v. Locke et al., supra, is a case in which an aunt deposited a sum of money in a savings hank in the name of her niece, intending that it should he a gift to the niece, but retained the deposit book in her own possession until her death. A by-law of the bank provided that deposits should only be withdrawn by the depositors or persons authorized by them. During her last sickness the aunt for the first time informed her niece of the gift. On the death of the aunt her administrator brought a bill in chancery against the niece and the bank to recover the deposit. The Supreme Judicial Court of New Hampshire held that the deposit created a trust in the bank in favor of the niece and that upon information of what had been done being conveyed by the aunt to the niece and acceptance by the niece the title of the latter -to the money became absolute, although there had been no delivery of the deposit book. In the opinion in the case the transaction is treated as creating a trust and the act of the aunt as a declaration of trust, and it is said that the delivery to the bank as trustee by the aunt for her niece was a sufficient delivery “good at least until the trust was revoked, and that an acceptance by the donee before a revocation (admitting'it to be revocable) will consummate the gift.” This, the court holds to be the true doctrine, although one condition of the by-laws of the bank was that the deposit could only be withdrawn upon presenting the original deposit book, another condition being that the deposit could only be withdrawn by the depositor or some person authorized by her. It further appeared in that case that the intestate, the
“If the donee then accepted her bounty, we think it thereupon became a perfected gift. The fact of such acceptance does not appear affirmatively in the case; but, considering’ that it was a benefit to the donee, burdened with no condition, we think her acceptance must be inferred from what does appear; and, according to the views expressed, the title to the money thereupon became absolute in the donee . . . and the defendants are entitled to a decree. ” The bill was dismissed.
In Smith, Admx., v. Ossipee Valley Ten Cents Savings Bank, supra, a father deposited money in the savings bank in the name of his daughter, intending it as a present gift to her, subject to the right of himself and his wife to take the income during their lives. "While the daughter was informed of the.arrangement and assented to it, the deposit book was never delivered to her. The court held this was a good gift of the deposit, subject to the life interest specified. In the course of the opinion in that case, Judge Bingham •says (l. c. 232):
“Just what it is necessary to do to pass the title to money through the intervention of a savings bank, the authorities do not agree in the different States, and often in the same State, and it' would be a difficult task to reconcile them. The doctrine of Blasdel v. Locke, supra, is not supported in all of its positions by all of the authorities, but we see no good reasons for departing from it, and think it supports the conclusions to which we have arrived.” Here follow a multitude of authorities in which the questions involved are ■discussed.
In McElroy v. National Savings Bank, supra, it is held that an entry in a savings bank pass book representing moneys deposited by a husband, reading “Al
In Augsbury v. Shurtliff, 180 N. Y. 138, l. c. 147, both of the last two cases are cited by Judge Vann in his concurring opinion in support of the proposition that, “When a husband takes securities payable to himself or his wife, they become hers if she survive him, and the delivery thereof to her by him is not necessary to perfect the gift.”
In Main’s Appeal, 73 Conn. 638, referring to the evidence as to the fact's accompanying .the transaction, it is said (l. c. 644):
“If it had been the intention of Mrs. Goodrich in making these deposits that a joint interest with herself in the money should immediately vest in her daughters, the gift would, not have failed because she retained pos*305 session of the hank books. Her possession as a joint owner would have been regarded as the possession of the other joint owners. ” McElroy v. National Savings Bank, supra, and Sanford v. Sanford, supra, are cited in support of this.
One of the most exhaustive discussions of the questions here involved is in Dunn v. Houghton, 51 Atl. Rep. 71. There, finding that the original owner of the fund in a savings bank had made “a donative transfer” of an interest in the fund, but had retained possession of the pass book, it is held that this fact did not affect the completed donation which had been made. The correctness of this principle was acknowledged in Schippers v. Kempkes, 67. Atl. Rep. 1042, the latter affirmed by the court of Errors and Appeals, 72 N. J. Eq. 948, and both cases referred to approvingly in McCullough v. Forest, 84 N. J. Eq. 101.
As illustrative of the theory contended for by defendant in error, a very strong case is that of Whalen v. Milholland, 89 Md. 199. There the Court of Appeals of Maryland held that the deposit of money in a savings bank in the names of a depositor and another person as joint owners, payable to the order of either and the survivor,, is not of itself sufficient to constitute a gift of the money to such other person who becomes the survivor if the depositor retains possession of .the pass book.
We have no authority in our State directly bearing upon this question. As noted by the Supreme Court in New Hampshire in Smith, Admx. v. Bank, supra, as well as, by the vice-chancellor in Dunn v. Houghton, supra, there is a very decided conflict of opinion on this question.
In the case at bar there was a completed transaction; a donation of the fund; a transfer of the account on the books of the bank from the name of the depos
■ Without undertaking to compile the multitude of authorities on the subject, or to-reconcile them, our conclusion is that this was a completed donation, by which the fund became a joint fund, passing to the survivor on the death of one of the parties to it, and that the purpose of the donor was not defeated by his-retention of the pass book.
The judgment of the circuit court is consequently reversed and the cause remanded with directions to that court to enter up a judgment dismissing the claim of the legatee and of the executor and awarding the fund to plaintiff in error, Katherine DuMontimer.