142 Ala. 456 | Ala. | 1904
On June 17, 1903, Charles E. Taylor who was plaintiff’s husband, deposited with the defendant, which is an incorporated National Bank, $650.00 in the name of “Mrs. D. E. Taylor” and received Horn the Bank teller an aeount book having on its back the words and figures “First National Bank, Montgomery, Ala. In aeount with Mrs. D. E. Taylor,” and having inside of it these words and figures, “Dr. ---In aeount with Mrs. D. E. Taylor, Or. June 17, 1903 — $650.00.” At the same time Charles E. Taylor delivered to defendant a signature card, which has ever since been in defendant’s possession, having on it the words and figures “Mrs. I). E. Taylor to the First National Bank of Montgomery. Below please find duly authorized signatures which you will recognize in payment of funds or the transaction of other business on our account. Mrs. I). E. Taylor per C. E. Taylor.” On June 22, 1903, Charles E. Taylor drew two checks upon the deposit, one for $4.00 and the othei for $5.00, to each of which checks he attached the signature “Mrs. D. E. Taylor per C. E. Taylor” and each of which checks were on that- day paid by defendant. Charles E. Taylor died on or about June 22, 1903, and some days thereafter plaintiff drew a check on defendant for the balance of the fund signed “Mrs. D. E. Taylor” and defendant refused to pay it, and also refused to pay on a demand made by plaintiff’s attorney.
On facts undisputed and substantially as above stated, without more, this cause was tried without a jury. The main question presented by the record is whether those facts show a liability on the part of defendant to the plaintiff rather than, to the estate of Charles E. Taylor, deceased. In considering the question it is proper to be
This presumption made, plaintiff’s claim is left to rest upon the theory that a gift to her ivas effected by the transaction wherein the money ivas deposited. To the making of a gift it is essential that -there bé a delivery, actual or constructive, of the thing with intent on the part of the donor to divest himself of ownership, and this principle is applicable to deposits in banks made by one to the aco-unt of another. — Anniston National Bank v. Howell, 116 Ala. 375; Matter of Bolin, 136 N. Y. 177; Robinson v. Ring, Admr., 72 Me. 140; Broderick v. Waltham Sav. Bank, 109 Mass. 149; Davis v. Lenawee County Sav. Bank, 53 Mich. 163; Greene v. Bank, (Idaho) 64 Pac. Rep. 888; 14 Am. & Eng. Ency. Law, 1037, 1039.
The evidence in this case is not inconsistent with an, intention on the part of Charles E. Taylor to make the deposit in plaintiff’s name for his own purposes or convenience, and we think is insufficient to show a gift. The signature card amounted to a direction to the bank and negatived any right of the plaintiff to> draw on the fund in question except on checks signed by Charles E. Taylor in her name, and such direction is inconsistent with 'an intention on his part to invest the plaintiff with tliat control over the fund which is necessarily incident to ownership. Such signing of check® on a -fund belonging to plaintiff would apparently have been the act of her agent, but this consideration does not weigh in determining whether she became the owner.
The judgment must be reversed and one here rendered in favor of the defendant.
Reversed and rendered.
