189 A.D. 449 | N.Y. App. Div. | 1919
Lead Opinion
Christina McGovern, who had long been a domestic servant, died on the 15th day of December, 1917, at the age of more than eighty. She had made deposits of savings through the course of years, without withdrawals, in the defendant bank, so that shortly before her death $8,096.49 stood credited to her account. On or about the 12th day of December, 1917, she placed her mark at the foot of a paper which read as follows: “ Manufacturers National Bank of Troy, N. Y. Pay Trans to Joint a /c Margaret Hayes and Christina McGovern or Bearer Seventy-eight hundred one 69/100 Dollars, on account of Money standing to my credit or subject to my control in your Bank, as a Special Deposit on interest per
named, together with interest, made up the total sum of $8,096.49 then in her account. She passed this paper with her bank book across the table at which she was sitting, toward
The paper authorizing the bank to change the form of the deposit did not of itself operate as a transfer of title to the fund. It was directed only to the bank, and the direction if followed would have effected no transfer. It was said in Beaver v. Beaver (117 N. Y. 421): “ We are inclined to think that to infer a gift from the form of the deposit alone would, in the great majority of cases, and especially where the deposit was of any considerable amount, impute an intention which never existed and defeat the real purpose of the depositor.” In Matter of Bolin (136 N. Y. 177) it was said of a deposit of moneys by their owner to the credit of herself and another: “ The only presumption would be that the depositor so arranged for the purposes of convenience.” In West v. McCullough (123 App. Div. 846) it was said: “ In case a
The moneys now in controversy were drawn out by Margaret Hayes after the death of Christina McGovern from the account which stood to the credit of the two women in the defendant bank, and placed to the credit of herself and her husband, who are now the plaintiffs. When the plaintiffs placed in evidence a bank book showing that these moneys stood to their credit they made a prima facie case for recovery. The moment it appeared, however, that these moneys were derived from a fund formerly standing to the credit of Christina McGovern, the burden of going forward with the proof shifted, and the plaintiffs were compelled to establish that legal title passed to them by a transfer through Margaret Hayes from Christina McGovern. This burden the plaintiffs have not successfully borne.
It is argued that Christina McGovern, if she did not intend a gift to Margaret Hayes, did at least intend that Margaret Hayes should receive the fund in trust for distribution among her relatives. The answer is that the supposed trustee is not here a plaintiff claiming as trustee. Instead thereof two individuals are plaintiffs claiming in their own right. Even if Margaret Hayes alone were plaintiff claiming as trustee it would be necessary for her to allege and prove the trust. To the validity of an express trust the naming of cestui que trust, and of a trust fund are necessary. It has not been proven that the deceased directed Margaret Hayes to distribute the fund among cestui que trust named by her in proportions by her given. The letters of Margaret Hayes were competent proof only negatively as admissions against her interest to indicate that a gift was not intended. They cannot be used affirmatively to establish a trust on the part of Margaret Hayes in favor of relatives of the deceased designated by her in a case where the existence of a trust has not been asserted. The plaintiffs must rest their case exclusively upon a voluntary gift from Christina McGovern to Margaret Hayes, and in this they have utterly failed.
For these reasons the judgment and order should be reversed..
All concurred, John M. Kellogg, P. J., with a memorandum, except_Woonward, J., dissenting, with an opinion.
Dissenting Opinion
The plaintiffs brought this action against the Manufacturers’ National Bank of Troy to recover the amount of a joint deposit in that bank, aggregating $5,319.98. There is no doubt that they were able to allege and prove a clear cause of action at law, but a portion of the fund which stood credited to the plaintiffs on the books of the bank was derived from a deposit originally made in the name of Christina McGovern. The bank, being fearful that the transfer of that fund to the plaintiffs involved fraud or irregularity, made a motion to bring in the present defendant, depositing the portion of the fund in question to the order of the court in the litigation, and this motion was granted, the bank retiring as the defendant in the action.
The plaintiffs thereupon served a supplemental complaint, alleging the primary obligation of the bank to them and the fact of the granting of the interpleader as to the sum of $3,994.49, the sum really in controversy, and claimed to be the owners of said sum, demanding judgment therefor.
The substituted defendant denied the material allegation of the complaint relating to the ownership of the fund, and as “ a second and further defense herein, and as a counterclaim,” alleged the death of Christina McGovern on or about the 15th day of December, 1917, leaving next of kin surviving. It was alleged that she was at the time of her death the owner of the fund in controversy, and the steps taken for the appointment of the defendant as administrator of the estate of the said Christina McGovern are set forth. The answer then alleges a fraudulent conversion of the fund in suit by the plaintiffs, and that “ the said sum of $3,994.49 on deposit
Upon the trial of the action the evidence clearly showed that in an action at law against the bank the plaintiffs were entitled to recover; the deposit of the funds by the plaintiffs was established, and with this, of course, the promise of the bank to pay the fund to them upon demand. The question presented to the court, therefore, was whether Christina McGovern was, at the time of her death, the equitable owner of the deposit to the extent alleged in the answer of the substituted defendant. In other words, when it was shown that the plaintiffs actually had a deposit covering the fund, in the bank of the original defendant, the substituted defendant undertook the burden of showing that the money of Christina McGovern was fraudulently and unlawfully mingled in such deposit; that the equitable title therein vested in the said Christina McGovern at the time of her death, and the only question here is whether he has sustained the burden of proof thus assumed. On the face of the evidence the plaintiffs were entitled to the deposit of $5,319.98 standing in their names in the Manufacturers’ National Bank, made up in part of the $3,994.49 which was, concededly, transferred from the account of Christina McGovern, and there is no presuumption that this transfer was unlawfully or fraudulently made.
The learned court, upon the trial, submitted to a jury the question of the ownership of the money, and the jury found that Christina McGovern was not the owner of the fund at the time of her death, and this finding of fact was accepted by the court, so that in this equitable action the defendant has had the privileges of a trial by jury as to the material fact in the case, and, unless the evidence clearly fails to sustain the verdict of the jury and the decision of the court, there is nothing to justify this appeal.
Indeed, it does not seem to be seriously urged that the judgment is not proper upon the evidence, but because the learned trial court made reference to an identification card,
Was there any other reasonable construction to be placed upon the order than that given it by the bank clerk? The direction was to transfer to a joint account in the name of “ Margaret Hayes and Christina McGovern or Bearer Seventy-eight hundred one 69 /100 Dollars, on account of Money standing to my credit or subject to my control in your Bank, as a Special Deposit on interest per Pass Book,” etc. The sum mentioned was the total of the principal fund, and a direction to transfer that amount of a “ Special Deposit on interest,” was clearly designed to authorize the transfer of the entire account; no one would assume that it was the intention of the person giving such an order to separate “ a Special Deposit on interest ” from the interest it had earned. But assuming, for the sake of the argument, that the order was limited to the amount named, there can be no question that there was a valid order for this sum, and it was not vitiated in its entirety because a bank clerk misconstrued the language. The transfer was good as to the sum of $7,801.69, and there is no means of separating the interest in the action now before the court. I do not, however, recognize the justice of this construction; the order fairly construed in the light of all the circumstances was a direction to transfer the “ Special Deposit on interest,” leaving the bank clerk to
The fact that Margaret Hayes acted upon the theory that a portion of this fund should be distributed among the next of kin of Christina McGovern, and that she actually did distribute about one-half of it to such next of kin, does not operate to change the law. As survivor of this joint deposit she became entitled to the whole of it, and as it has been found that there was no fraud in the transfer, and no undue influence, which is but a species of fraud, it must follow that the mere fact that the trial justice made reference to an identification card as being corroborative of the plaintiffs’ theory of the case does not justify the reversal either of the order or the judgment. The facts as they appear in the evidence, entirely apart from the identification card, fully justify, if they do not compel, the judgment.
The judgment and order appealed from should be affirmed, with costs.
' Judgment and order reversed on the law and facts, and new trial granted, with costs to the appellant to abide the event. The court disapproves of the seventeenth finding of fact, and of the first, second, third, fourth and sixth conclusions of law so far as they contain any finding of fact.
Concurrence Opinion
The letters of Margaret Hayes, referred to in the opinion of Mr. Justice Henry T. Kellogg, make it plain that the transfer did not make her the owner of the bank deposits, and I favor reversal for that reason. I am inclined to think that under section 144 of the Banking Law (now Banking Law, § 249) the judgment might otherwise stand. (Clary v. Fitzgerald, 155 App. Div. 659; 213 N. Y. 696.) But it is unnecessary to consider that question.