201 Mich. 294 | Mich. | 1918
Mary Fleming died at Jackson, Michigan, on March 16, 1916, survived by her husband, James Fleming, plaintiff herein, their daughter Mary E. Dalton, defendant herein, and three sons named James, Peter, and John Fleming. Her age is not stated but she was an elderly woman, her husband James being 70 years old at the time of the trial, her daughter Mary 42, their son James 47, and John, who testified that he was the youngest of the family, told of events happening in 1902 at which time he had married and left the parental home. About 8 years prior to her death Mary Fleming caused a savings account for deposits by her in the Jackson City Bank to be made payable to herself and defendant. Pass-book No. 402 of the savings department of said bank, which she delivered to defendant before her death, shows the account is with “Mary Fleming or Mary Fleming-Dalton,” that it was opened in 1896 by a deposit of $1 and ran through succeeding years in varying amounts until at the time of her death the credit balance was $697.35, which was thereafter withdrawn from the bank by defendant who claimed it was given to her by her mother. Claiming this money was his, and had been entrusted to deceased as his wife to handle for him in that capacity, plaintiff brought this action to recover the same from defendant. The trial resulted in a verdict and judgment for him of $731.33, being the full amount of such deposit with interest from the time it was withdrawn.
Defendant’s 50 assignments of error, many of which do not impress us as demanding serious consideration/ are directed to claimed erroneous admissions of testimony, refusal to charge as requested, the charge as
This was a savings deposit put by deceased in the joint names of herself and daughter with declaration of donation at the time followed by delivery before her death of the bank pass-book for the same. No question is, or we think can be, raised as to a gift to defendant by deceased, provided it was hers to give. Plaintiffs only claim is that it belonged to him. Upon that proposition the burden of proof rested upon him under the undisputed facts.
Plaintiff and his family came from Glasgow, Scotland, 39 years previous to the. time of the trial, first to Ohio where he worked in the mines a couple of years and then moved to Jackson where they thereafter remained. Plaintiff is not shown to have had any trade or special calling, and what line of employment he followed is not disclosed except by his statement that he worked in the mines in Ohio and was at the time of the trial working for the city in the water department, repairing water service pipes and mains. His son James testified that he was a steady, hard working man without education and had “no business facilities at all.” It is shown that he turned his wages over to his wife, whether in whole or in part is a matter in dispute, that she managed all their business and household affairs, making ^repurchases and paying the bills for the family. The record is silent as to the amount of plaintiff’s average earnings, what wages he ever received or what amount he regularly or at any time turned over to his wife. She is, however, shown to have been a thrifty, economical and saving woman, who at times had savings accounts in banks and in 1898 took some stock in the Standard Savings & Loan Association of Detroit, on which she paid $5.25 per
It also appears that shortly before deceased placed this savings account in the name of herself and defendant she had received from the Standard Savings & Loan Association of Detroit between five and six hundred dollars in payment for the transfer or surrender of seven shares of its stock which she had held in said company and paid dues on for about seven years. From whatever source she may have obtained money to pay her dues, she had been a subscriber and held such stock as her own during that time. By section 7580, 2 Comp. Laws (2 Comp. Laws 1915, § 10001), it is provided, so far as material here, that:
“Married women may become subscribers to the capital stock of such corporation, and hold, control, and transfer their stock in all respects as femmes sole, and their stock shall not be subject to the control of or liable for the debts of their husbands.”
Directly applying to the relation of husband and wife, this provision necessarily means something more than the right of the wife to invest her own independently acquired funds or savings in building and loan stock, for she already had that right to* the full under the so-called -married woman’s act (3 Comp. Laws 1915, § 11485). It would scarcely be within the fair intent of this provision, or the spirit of our modern legislation emancipating the wife from oppressive common law rules respecting her marital relations, to con
Deceased’s marital duties to. her husband, in caring for, managing and doing the housework of their home, imposed upon her no legal obligation to assume the extra burden of taking their adult children as boarders, even though a natural and.' congenial arrangement to all of them. This she did, receiving from them the pay for their board with his knowledge and consent, to which he never made claim during her lifetime.
During the last five years of her life, irrespective of any donation or permission by her husbaiid, she was absolutely entitled to. all earnings acquired as the result of her personal efforts in services performed for others than her husband. Act No. 196, Pub. Acts 1911 (3 Comp. Laws 1915, § 11478).
The record is destitute of any testimony showing plaintiff’s earnings at any time, their family expenses or what amount he ever gave his wife, or what if any directions he ever gave her as to the disposition of what she received from him, or any claim made by him for any of it during her life.
It is shown that when she died, and when she put this savings account in the name of herself and defendant, deceased had property of her own, some money at least which legally and separately from her husband belonged to her. There is no evidence showing how much of it or how much of that received directly from plaintiff went to make up the deposit in dispute. The burden of proof rested upon him to show this by competent testimony, and trace directly or circumstantially the money he claimed to have entrusted to his wife as his agent through her hands
In that respect this case is analogous in many particulars to McNamara v. Langguth, 198 Mich. 776, where it is said of deceased wife’s bank account claimed by her husband:
“Assuming, then, what the evidence in the record tends to establish, that some portion of the bank account is represented by deposits made out of the funds sent to Margaret by her husband, the plaintiff, and assuming, further (which we do not hold, see Wipfler v. Pattern Works, 140 Mich. 677 [104 N. W. 545, 112 Am. St. Rep. 430]), that as to such portion, Margaret should be considered as the agent of the plaintiff instead of as the absolute donee of the fund, How may the court determine what proportion of said bank account properly belongs to the estate of Margaret McNamara, and what proportion thereof to the plaintiff? It is obvious that upon this point no conclusion can be reached based upon the testimony in the record, and the court would be obliged to resort to mere conjecture.”
For the foregoing reasons the judgment is reversed, with costs to defendant, and a new trial granted.