103 A.D. 141 | N.Y. App. Div. | 1905
This action is brought to recover $2,378.65, being the amount of a deposit with the defendant Home Savings Bank of the City of
Kate V. Beers died July 1, 1903, leaving two children, the plaintiff Sarah E. Kelly and the defendant Franklin B. Beers. She had an estate which, including all of the securities at their face, value, and the savings and other bank accounts herein mentioned, amounted to about $31,844.44. Of such amount about $8,375 is claimed by the executors to be of doubtful value, and $9,878 is made up of deposits in savings and other banks in Albany, as more specifically mentioned hereafter, leaving the gross value of the estate, exclusive of savings and other bank accounts in Albany, and such alleged doubtful securities, about $13,591.44.
Kate V. Beers on July 1, 1895, made her will, and on the 30th day of June, 1900, she made a codicil to such will, and by said codicil she gave to her daughter, Sarah E. Kelly, any, all and whatever money she should have on deposit at the time of her decease in the Albany Savings Bank.
' On the 6th day of December, 1900, Kate V. Beers made a new will, in and by which she gave to descendants of the plaintiff some specific articles of personal property and legacies aggregating $4,000, and to the descendants of her son, Franklin B. Beers, some specific articles of personal property and legacies aggregating $3,000. By said will she gave to said Franklin B. Beers certain specified securities aggregating $8,350, 'and to the plaintiff, her daughter Sarah E. Kelly, a legacy as follows: “ I give to my daughter Sarah E. Kelley
On September 30, 1901, Mrs. Beers and the plaintiff went to the defendant Home Savings Bank and Mrs Beers presented to the hank her passbook, and said to one of the officers of the bank “that she would like that account arranged so that either she or her daughter could draw it and if anything should happen to her, her daughter could get the money without any further trouble.” The officer told her that he “ would make out a new book in the name of herself or her daughter or the survivor of them; that would arrange it as she wished.”
A check for the balance appearing on the old book was drawn, Mrs. Beers indorsed the check and delivered it to the bank, and a new bank book was made out for the amount of the check. Both Mrs. Beers and Mrs. Kelly placed their signatures in the signature book of the bank at the request of the bank officers. The new book was made out in the name of “ Kate V. Beers or Sarah E. Kelley
On the 7th day of January, 1902, Mrs. Beers changed her account, amounting to $3,052.50, then standing in her individual name in the
About a month before her death Mrs. Beers went to visit her said son in Borne and the plaintiff went to visit her daughter in Connecticut. On the 30th day of June, 1903, at Borne, the day before Mrs. Beers’ death, she executed a codicil to her will, by which she" revoked the bequest to her son of specific securities, and to her daughter of savings and other bank accounts, and in place thereof she gave to her son the sum of $7,000 and to the plaintiff the sum of $7,000. The residuary clause of her will, by which she directed that the residue of her estate be divided between her said son and daughter in equal shares, remained undisturbed.
For about four years prior to the death of Mrs. Beers the plaintiff had resided in Albany with her mother, except that she was away at different times, for several weeks or months, visiting her children who lived in other States. Franklin B. Boers resides and has for several years resided at Borne, N. Y. The savings bank books were kept in a writing desk in the sitting room of Kate Y. Beers, and the plaintiff and Mrs. Beers each had a key to such writing desk. When Mrs. Beers died the book of the defendant Home Savings Bank with the other bank books were in said writing desk. A few days after her mother’s death plaintiff opened the writing desk and took the bank books therefrom and delivered them to the executors named in the will of her mother on their statement to her that, if they found that the books were the property of the plaintiff, they would return them to her. The plaintiff demanded of the defendant Home Savings Bank payment of said account in its bank, and the amount not being paid this action was brought to recover the same. By consent the executors of the will of Mrs. Beers were made parties defendant in the action and the defendant Home Savings Bank by stipulation holds the money on deposit subject to the final order and judgment of this court.
At the trial a jury was called and plaintiff offered in evidence ' the book of the defendant bank, also testimony by the bank officials
Another witness, a real estate agent, who had done business for Mrs. Beers in her lifetime, testified that three years before Mrs. Beers was at his office and that she said “ that she would like to fix her account in the savings banks so that Mrs. Kelly could draw the moneys or that money should be absolutely hers at her death. * * * She used to dwell upon that subject quite a good deal.”
Another witness, a neighbor of Mrs. Beers, testified that Mrs. Beers said to her “ that all of the moneys in the different banks was to be for her daughter Sarah; that she might have it at any time or after Mrs. Beers’ death.”
After the plaintiff rested, the executors were each sworn and testified to conversations with the plaintiff after Mrs. Beers’ death, and each testified that the plaintiff said that she had never had possession of the book. One of the executors testified that plaintiff said to him that she owned the books and in substance that she understood from her mother, and that her mother had said to her at different times, that the money was to be hers after she was dead. The defendants also offered in evidence the wills and codicils referred to and also testimony relating to the condition and value of the estate and as to the savings bank accounts and the history of each.
The plaintiff was sworn in denial of the alleged admissions and gave further testimony as to whaf occurred subsequent to Mrs.
Nothing further was done at that time, but subsequently the court signed a decision in which it recited, among other things, that “A jury having been impanelled to advise the court as to certain matters of fact, and having answered in the affirmative the following question submitted to it to be answered ” (question quoted), and further recited that upon due deliberation it had found as matter of fact certain findings setting forth with much detail the facts including a finding “ That the said Kate V. Beers retained control over said money so deposited as above set forth down to the time of her death,” but did not make any specific finding as to the intent of Mrs. Beers in making the change in her account in the defendant bank. The court then found as matter of law:
“First. That the said Kate V. Beers, deceased, did not by any act of hers divest herself of dominion or control over the moneys deposited with the defendant, the Home Savings Bank.
“ Second. That the said Kate V. Beers, deceased, did not divest herself of all title to, dominion or control over, the moneys or any part or portion thereof, deposited with the defendant, the Home Savings Bank.
“ Third. That the transactions between Kate V. Beers and the plaintiff, in relation to the moneys deposited in the defendant, the Home Savings Bank, were ineffectual to constitute a completed gift of such moneys, or any part or portion thereof by the said Kate V. Beers to the plaintiff.
“ Fourth. That the said Kate V. Beers did not by any of her act or words constitute the plaintiff a joint owner with herself, with the right of survivorship, of the moneys deposited by her, the said Kate V. Beers, with the defendant, the Home Savings Bank.”
A judgment was entered upon such decision dismissing the complaint.
The cases before the courts relating to alleged gifts and trusts, particularly of savings bank accounts, have become so numerous and the reasons for such alleged gifts and trusts are so varied, that the courts now hold, in substance, that unless there is a clearly expressed transfer or trust agreement showing the intent of the donor or trustee, that whenever there is an apparent attempt to make a gift or create a trust the intent of the alleged donor or trustee is a question of fact to be determined after an examination of all the circumstances in each case.
In Matter of Totten (179 N. Y. 112) the court, quoting from Beaver v. Beaver (117 id. 421), say: “We are inclined to think that to infer a gift from the form of the deposit alone would, in a 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.”
The most recent expression of the courts in construing a written decision for a transfer of a savings bank account is in Augsbury v. Shurtliff (180 N. Y. 138) where a husband and wife signed a formal paper to a savings bank directing that their accounts bo merged in one running to “John C. Roof or Sarah Ann Roof or the survivor of them,” and in which they say, “ Our object being that in case of the death of either the other may draw the whole amount,” the court say : “ In the absence of evidence upon the subject the inference might be permissible that it was their intention to give the survivor the right to draw the whole amount so as to make it his or her own property. Assuming this to be so, the effect of the paper was, therefore, a written order addressed to the bank requesting it to change their respective deposits so as to make each the
Such a gift is recognized in Sanford v. Sanford (45 N. Y. 723 ; 58 id. 69); McElroy v. National Savings Bank (8 App. Div. 192); McElroy v. Albany Sav. Bank (Id. 46), and in Matter of Meehan (59 id. 156). The gifts mentioned in the cases last cited were all between' husband and wife. The fact that an alleged donor and donee are husband and wife is very material in determining the intent of the parties to the transaction, but when the intent is established the principle stated in such authorities is equally applicable to gifts between parent and child. In Farrelly v. Emigrant Industrial Sav. Bank (92 App. Div. 529) the court, in considering the effect of a mother changing ah account in a savings bank standing in her individual name to an account in the name of herself or son, say: “ There is some authority for holding that the change in the form of deposit, by which the son was enabled to draw equally with the mother, is evidence of an intent upon the part of the mother to constitute the son a joint owner with her in the fund. Whether the deposit standing alone, disassociated from any other fact, would have such effect it is not necessary for us now to determine, and we express no opinion thereon. Taking into consideration, however, the form of the deposit, the delivery of the book with directions to deliver to the son, it would clearly authorize the court to find that it was the intent upon the part of the mother to vest in the son a joint owner
The plaintiff in this case was present when the account was transferred at the defendant bank and signed the signature book, and she also claims that the bank book was then and there delivered to her. The important question in this case for determination is whether Mrs. Beers intended to give to her daughter a joint interest with her in the savings bank account with the absolute ownership of the entire fund in case the plaintiff survived her, or whether the account was so transferred merely as a matter of convenience in drawing the money from the bank. (Matter of Bolin, 136 N. Y. 177; Farrelly v. Emigrant Industrial Sav. Bank, supra.) The case of De Puy v. Stevens (37 App. Div. 289) is not in conflict with the conclusion herein reached. In that case the opinion of the court is principally devoted to a discussion as to what is necessary to constitute an unqualified and absolute gift inter vivos. The court then further says: “ The only theory upon which such a contention (gift of residuum of fund on deposit to survivor) can be maintained is that a joint ownership was created when the fund was withdrawn
We also think that the court erred in allowing evidence of the codicil made by Mrs. Beers to her will on June 30, 1903. There is nothing in the record to show that the transfer of the account in the defendant bank was a tentative one, but from the record as it now appears it was either a transfer for the purpose of vesting in the plaintiff a joint interest in the account with Mrs. Beers, with right of survivorship, or it was for the purpose of convenience in transferring the account.
Any statement made by Mrs. Beers, not a part of the res gestee and not made in plaintiff’s presence or in a way that she is bound thereby, should not affect the determination of the question as to the intention of Mrs. Beers at the time when the transfer was in fact made. Whatever possession Mrs. Beers had of the savings bank book at the time of making the codicil to her will may have been as agent or trustee for the benefit of the joint owners. It is a general principle applicable to this case that declarations of a donor of personal property made after the gift are incompetent and inef
All concurred, except Parker, P. J., dissenting, and Chester, J., not voting, Houghton, J., being of opinion that the admission of the codicil was not reversible error.
Judgment reversed and new trial granted, with costs to appellant to abide event.
Kelly.
Kelly.
50 Hun, 477.— [Rep.