Gorman v. Gorman, 87 Md. 338

Gorman v. Gorman

87 Md. 338 | Md. | 1898

Fowler, J.,

delivered the opinion of the Court.

The controversy in this case grows out of a dispute as to the ownership of a fund deposited in the Savings Bank of Baltimore. The bank filed a bill of interpleader in the Circuit Court of Baltimore City requiring the claimants, Bryan Gorman, the executor of Theresa McConnell, and Maggie Gorman, to interplead and settle their adverse claims. Both parties answered, each claiming the whole fund; amounting to nearly three thousand dollars. It was held by the learned Judge below that the executor was entitled to the money in the hands of the bank, upon the theory that the *345evidence fails to show a complete gift inter vivos. Maggie Gorman has appealed.

But for the ingenious and able argument of counsel for the appellant there would, we think, be but little difficulty in the case. For.it seems to us that notwithstanding the effort to distinguish this from all the other cases heretofore decided by this Court of a like character, involving questions of ownership of funds deposited on joint account in Savings Banks, the general principles which must decide this case are settled in Maryland and other States as well. It is true the language used here by the bank in making the entry in the deposit book is different from that used in other cases, but after a careful consideration of the entry itself, and all the circumstances of the case, we are forced to the conclusion that it was not and could not have been the intention of Theresa McConnell to make Maggie Gorman a joint owner with herself of the money in question, and secondly, that if any such intention ever existed there was no such delivery of the money as is required to make a perfect gift inter vivos. The whole contention of the appellant in this case hinges upon the words “joint owners” used in the entries made by the bank both in the depositors’ book and the signature book, which is as follows : “ Theresa McConnell and Maggie S. Gorman, joint owners, payable to the order of either, or the survivor.”

The circumstances under which this entry was made in the depositors’ book are entitled to consideration.

It appears that Theresa McConnell had been for many years a confidential friend and trusted servant in the Wheelwright family, in the city of Baltimore, and that she, and other members of the family, “ Theresa was one of them,” had been in the habit when opening an account to open it “in the name of the person to whom the money belonged, and a second name was always placed on the bank-book as a matter of convenience in case of illness, and in no way included any ownership in that book.” On the 4th of June, 1895, Theresa McConnell had an account in *346the Savings Bank of Baltimore in her own name, no second name appearing upon the book. On that day she went to the bank with her niece, Maggie Gorman, the appellant, and had the account standing in her name alone closed, and opened the one which gives rise to this controversy. The testimony as to what took place comes for the most part from the appellant, either from her own testimony, or her declarations testified to by other witnesses. The witness Dorsey, the teller, had no recollection of the transaction, but testified it was the custom of the bank to call the attention of depositors to the words “ payable to the order of either or the survivor ” and to make the fact known to them that in case one dies the other can get it—provided the survivor produced the book. This testimony as to the importance of the bank-book is very significant when compared with that of the witness Daily, who testified that the appellant told him that she was requested by Theresa McConnell, her aunt, to go to the Savings Bank of Baltimore and that after the deposit was made and the transaction was ended the aunt called her, and the clerk or teller explained that the appellant Maggie would have power to draw the money. The aunt said she understood that; butafter leaving the bank, she said to the appellant “ was not that a funny remark the clerk made, saying you could draw the money. I don’t see how you can draw it when I have the book.” Another witness, Mary Daily, testifies that the appellant said that when she was returning from the bank with her aunt, she wanted to see the bank-book, but the desired permissoin was refused. Mrs. Assheton, a member of the Wheelwright family, who was well acquainted with Theresa’s feelings in respect to her nieces and nephews, says that she said again and again, that another, not the appellant, was her favorite. It is true that the appellant gives an entirely different account of the whole transaction, but without further comment we deem it necessary only to say that in our opinion the circumstances surrounding the transaction, so far from estab*347lishing an intention to make a gift of the money or any part of it to the appellant, they show the contrary.

If any such intention existed in the mind of Theresa, that is, if she intended then and there when the deposit was made to give the appellant a joint half interest in the bulk of her fortune, it would be only reasonable to expect that she would have mentioned it, if not to third persons, then at least to the appellant herself, and that instead of excluding her from the interview with the bank clerk when the deposit was made, she would have been invited to be present. If any valid gift was made it was made when the entry was made, but when we remember that the appellant was never permitted to put her hand upon the bank-book, until after the death of Theresa, when the executor allowed her to have it to draw the money for him, it is difficult to believe that she had or was intended to have any beneficial interest whatever in the deposited fund. But in addition to this, it must be remembered that Theresa left a will, and that the fund here in question constitutes a large part of her estate. This will and the two bank-books, one of which contained the entry now before us, were carefully guarded, and were placed in the hands of Mrs. Assheton for safe keeping only a few months before Theresa’s death. If the money deposited in the Savings Bank of Baltimore, as contended, was during the joint lives of the appellant and Theresa, their joint property and after the death of the latter belonged to the former absolutely, what remained of Theresa’s estate was altogether inadequate to gratify the provisions of her will. But believing and knowing that she had never given this money to the appellant, she disposed of it by her will. We say she disposed of it by her will, not because it is mentioned therein specifically, but because without it the provisions made for her kinsfolk in Ireland and this country were so many idle words.

But it is unnecessary to pursue this view, for, as we have said, the contention of the appellant rests upon the theory that the language used in the entry, irrespective of the facts *348and circumstances under which it was made, together with the deposit of the money or its representative, a cash ticket, in the bank, operated to make a perfect gift inter vivos. What is requisite to make such a gift perfect is so well settled here and elsewhere that only a statement of the rule is necessary. It is briefly and clearly stated in Taylor v. Henry, 48 Md. 557, by the former Chief Justice Alvey. “To make such a gift perfect and complete, there must be an actual transfer of all right and dominion over the thing given by the donor, and an acceptance by the donee or some competent person for him; and it is essential to the validity of such gift that it should go into effect, that is, transfer the property at once and completely.” What kind of delivery must be made depends upon the nature of the property or thing alleged to have been given. In this case the contention is that the words “joint owners ” mean exactly what they imply, namely, ownership and not mere agency with authority to draw. But the question before us is not as to the meaning of the word “ owners,” or the words “joint owners ” in themselves and apart from the connection in which they are used in the entry in the bank-book. And while we may admit that these words have an ascertained legal meaning in themselves, yet we entirely agree with the learned Judge below that they are not used here in the definite legal sense imputed to them by the appellant. Can we for one moment suppose that, with the information we have in this case, the alleged donor intended to put it in the power of the appellant on the day the entry was made to claim, and successfully claim if the appellant’s view be correct, one-half of the larger part of the savings of a lifetime. And'that in case the appellant should survive, she would get the whole fund, and the beneficiaries under the will, which had been so carefully guarded, would get none of it.

We have said that the question in this case must be decided by the general principles already decided in this State. One of these is that in order to ascertain the intention of the alleged donor as manifested by the entry, not only the entry itself, *349but “ all the circumstances surrounding the deceased at the time ” should be considered. Taylor v. Henry, supra. In the case just cited the entry was “ Joseph Henry and Margaret Taylor, and the survivor of them, subject to the order of either.” “ It is quite certain,” says the Court, “that if the words ‘and the survivor of them,’ had been omitted in making the entry,” the case would have been controlled by Murray v. Cannon, 41 Md. 466, and the gift would have been incomplete. The contention there in behalf of Margaret Taylor was the same as that made here in behalf of the appellant that the fund was the joint property of herself and the depositor—and that the survivor would be the owner of the whole. But the Court held otherwise and said that there were no terms in the entry that import of themselves an actual present donation and that the dominion retained by the depositor over the fund by retaining in his possession the bank-book, “enabled him to displace and utterly destroy all power conferred upon the sister in respect to the fund. ” And whatever may be the meaning and legal effect of the words “joint owners” generally, we think it impossible to give them the broad signification claimed for them in the connection in which they are used in the case now before us, and with the controlling fact admitted, that Theresa always held possession of the bank-book. The cases of Dougherty v. Moore, 71 Md. 248, and Baker v. Hedrick, 85 Md. 645, are quite similar to that of Taylor v. Henry, supra, and in each of them it was held that the fund did not pass and that there was not a perfect and complete gift inter vivos. If it be conceded that this case is to be decided upon the legal, technical meaning of the words “joint owners” placed upon them by the appellant, and that thereby she became a joint owner pure and simple without any limitation whatever, then it might be conceded that the cases of Murray v. Cannon, 41 Md. 466, and Gardner v. Merritt, 32 Md. 80, would sustain the theory that the delivery to the bank was a delivery to her and the gift is complete. But we cannot close our eyes to *350all the other evidence in this case and give effect alone to two words in the entry. In Murray v. Cannon, the Court said the original depositor retained dominion and control over the deposit by the very terms of the account, and it was therefore held, that his ownership of the fund being beyond'dispute, the mere fact that the bank-book was not retained by him could not affect his title or establish that of the persons in whose possession the book was found. Not that the possession of the bank-book is not an important fact to consider in determining the ownership of the fund, but when the ownership is fixed beyond dispute by the entry or in some other way, then the mere possession of the bank-book is not to be taken as conclusive of the ownership of the person in whose possession it may be found. The case of Gardner v. Merritt, 32 Md. 78, is the common case of a guardian making a deposit for the benefit of an infant, the entry containing, immediately after the name of such infant, the words, “ subject to the order of” the guardian. It was proved that by the laws of the bank in in that case guardians may deposit for the benefit of their wards, and subject such deposits to the control of such guardian. It was held that the delivery to the bank for the benefit of the infants was a perfected gift to them, and that the control retained by the depositor was such a control as was contemplated by the by-law—a control for the benefit of the infants—and not such a control as would pertain to a continuing legal power and dominion over it. In a word the Court there held that the delivery to the bank and the character of the entry, under all the proof in the cause, divested the depositor of her title to the money and vested it in the infants. But, as we have already said, such is not and cannot reasonably be held to be the effect of the entry and delivery in this case when viewed in connection with all the evidence in this case. In the case of Murphy ats. The Met. Sav. Bank, 82 Md. 319, the language construed is this, “subject to- the order of either. The balance at the death of either to belong to the survivor.” The whole amount was *351paid by the bank to the survivor. We said, “ The only question which we are now called on to decide is, had the bank authority in law to make such payment ?” And we held that inasmuch as the depositor who originally owned the money entered into a contract with the bank, the bank had only done its duty by complying therewith—and we refused after such payment by the bank to require it to pay a second time. It was also said that the transaction took somewhat of an equitable assignment, looking to the interests of the parties rather than to matter of form.

(Decided April 1st, 1898).

But in the case we are now considering there is no question as to the rights of the bank under the contract of deposit, but the object is to ascertain who is the legal and true owner of the fund. It may well be, as said by the learned Judge below, that as between the depositor and the bank, perhaps the entry in the bank-book might be conclusive ; and if the bank had paid the money according to the terms of the entry, it might be protected; but as between the depositor or her executor and the appellant the entry is not conclusive. It is a fact to be considered in connection with the other circumstances of the case to determine the donor’s intention. As we said in Baker v. Hedrick, what we decided in Met. Bank v. Murphy was, that under the facts of that case and because of the express language of the entry, that the balance should belong to the survivor, the bank was right in paying it to the survivor. Nor is there •any suggestion here that we are now dealing with an equitable assignment of the fund. On the contrary, the contention is that by virtue of the language of the entry there was at the time it was made, a full, complete and legal transfer to the appellant of a joint interest, and such a delivery as was necessary to make a perfect gift inter vivos. But, as we have already said, we cannot adopt this view.

Decree affirmed, costs to be paid by the executor out of the fund.