268 Pa. 507 | Pa. | 1920
Opinion by
The dramatis personae in this case are: Plaintiff, a widow, aged 92, who had three sons, two daughters and a number of grandchildren, and by thrift and economy had accumulated a small estate; a granddaughter, aged 23, hereafter called the defendant, to whom plaintiff had
On March 27, 1916, plaintiff was a depositor in the bank, the balance in her favor being $27,411.78. On that day she transferred the account to her two daughters, one of whom was defendant’s mother. It does not appear what was the purpose and effect of this transaction, but evidently it was not an ordinary gift to them, for the deposit was so made that either could withdraw the whole of it at any time, and if one died the survivor was to become sole payee; no part of it was in fact drawn out by either; and when later plaintiff demanded a check for the whole of it, including accrued interest, the daughters at once complied with her requirement.
Defendant desiring to have a saving-fund account of her own, plaintiff made a gift to her of $5,000 with which to open it. On April 21,1917, defendant and her mother went to the bank and the former deposited the $5,000 in her own name in the savings department. At the same time the mother, in order to comply with plaintiff’s demand for the amount in the joint account, requested a clerk at the bank to calculate the interest thereon, and to draw a check in plaintiff’s favor for the aggregate sum thus ascertained. This was done, the total amount being $28,456.79; the mother then signed the check and she and defendant took it to plaintiff’s home and delivered it to her. The other daughter was then sent for, and signed it in the presence of defendant and her mother ; defendant denies she was present, but the fact was found by the chancellor to be as stated. Shortly after, when plaintiff and defendant were alone in the former’s bed-room, where she “spends most of her time,” she endorsed the check to the order of defendant and handed it to her. The latter testified that until then she did not
At this same interview plaintiff also delivered to defendant a black box containing old coins and jewelry. Plaintiff says the check was to be deposited in her name in the bank, and the box to be left there for safe keeping. Defendant says both were absolute gifts, but nobody corroborates her, and, as already stated, no one else was present at the time. She says she told no one of the alleged gifts except her mother, who was dead at the time of the trial, and her counsel, who took part in the trial but did not testify. She took the check, and deposited it in her own name in the bank, in the same saving fund account which she had opened with the $5,000. She also took the black box and left it with the Farmer’s National Bank, but gave to plaintiff the folloAving paper: “In Melon’s bank in safe deposit vault are some valuable things. Martha Ingham.” Defendant says she did not write or sign this paper, yet every word of it is in her handwriting. Though defendant repeatedly saAv plaintiff between the date of the alleged gifts and June, 1918, she does not say she ever spoke of them to plaintiff or told the latter how they had been deposited, save as by the above paper she misled plaintiff regarding the black box.
On October 3,1917, plaintiff gave to defendant a check for $3,000. Plaintiff says this was a loan; defendant says it was a gift to help pay the expenses of her mother’s last illness (who had a reasonable estate of her own), but when plaintiff demanded its repayment twelve days later, defendant paid $900 on account, and now admits she owes the balance of $2,100. It will be noted all of this transaction occurred after the time defendant says plaintiff “was so weak mentally that she could be made to do things that she otherwise would not do.”
Plaintiff also gave defendant certain other sums of money. On May 22, 1917, she received $100, for what purpose she says she cannot now remember; on June 2, 1917, $37.85 to pay for plants she bought for plaintiff; and in 1918, the exact dates not being stated, she received $40 to buy a dress to wear at her cousin’s wedding, and $300 to pay her brother’s expenses at Cornell University. All these moneys were received while she owned, as she says, the large sums hereinbefore speci
When her mother died, defendant was one of the executors and made return to the Commonwealth of the amount of this estate for the purpose of state taxation; but so far as concerns the large sums, the subject of this litigation, she made no personal return, although they were drawing interest, and if they were hers she should have done so and paid the taxes thereon.
On June 25, 1918, plaintiff’s son, at her request, telephoned defendant that plaintiff “requested her to bring down a black box which was given her for deposit in Mellon’s vaults, and also the money and other property she had given her to take care of.” He says “she said she would bring them down the next day.” Defendant denies she promised to return them, but admits she promised to call. She did not even do this, however, but instead thereof wrote to plaintiff on June 27, 1918: “Whats caused this change, you have ignored me, and changed your mind so. What have I done to you. Will not be in town until I hear more.” On the same day plaintiff replied acknowledging receipt of the note, referred to defendant’s promise to return the money, and added: “I write you now to bring down the box and also to bring down all the money which I gave in your care to deposit for me,......as I want my property in my own possession.” On July 1, 1918, defendant went to plaintiff’s house, and returned the black box and its contents, except a pin and a pair of earrings, which she was allowed to keep. She did not return the money, however, but in response to plaintiff’s demand for it, said: “I have to give forty days notice to the bank, which I did......you can’t get it for forty days, because it requires that time to notify the bank to get it.” This did not satisfy plaintiff, who on the same day wrote “You left......this morning without paying over to me the
It will be observed that at no time did defendant say the money was a gift to her, or deny her alleged promises to return it, either as made at the time she received it or in the conversations above referred to. She did not, however, keep her promises, and hence plaintiff filed the present bill in equity, praying a decree that the money was hers, that defendant be required to render an account and to transfer to plaintiff the moneys in the bank, and that the bank be enjoined from paying these funds to anybody but plaintiff. In defendant’s answer she averred, for the first time, that the money was a gift to her; set forth the foregoing additional sums received by her except those for $100 and $37.85, which she seems to have overlooked; denies “that the plaintiff herself made any demands upon me to return any money to her which I had in my possession” (though the letters above quoted negative this statement); and avers “I am the owner in my own right of an interest in the estate of my grandfather (subject to the rights of my grandmother), which consists largely of real estate in the Town of Steubenville, and also own other real estate which came to me from my father and mother, and am absolutely responsible.” In its answer the bank admitted the facts, so far as they were within its knowledge, and submitted itself to the court.
In her evidence defendant says plaintiff did not write and ask her, defendant, to return the black box and its contents, though the letters above quoted flatly contradict her; and that the reason why she told only her mother and counsel of the alleged gifts, was because plaintiff did not wish anybody to know of them; but she does not explain (1) why she did not so state during the correspondence and conversations immediately preceding the filing of the bill; or (2) why, if she has so much
In his adjudication the trial judge found the facts substantially as above set forth, except those relating to plaintiff’s mental and physical condition. As to these he wholly overlooked defendant’s testimony above quoted, and in opposition thereto found that plaintiff “Is a large and healthy woman, physically. She has never shown any mental weakness......She is still [July 8, 1919] a strong woman mentally, except that her memory is now failing. How long it has been failing does not appear.” The reasons he gives for so concluding, are thus stated by him: “She......is still managing her own estate and attending to the interests of her children in the estate left by her husband. She makes annual statements to them of moneys collected and due to them and she regularly distributes their respective shares. She has always so done. Because of such physical infirmities as naturally attend a person of her age, she does not personally make collections, do the clerical work or attend to repairs, but she controls, directs, and supervises everything in connection with the management,” The evidence does not justify these statements
The primary error of the court below is in the foregoing findings regarding plaintiff’s condition, and the secondary error is in its conclusion: “The burden [of proof] is on the plaintiff to produce......evidence and she has not produced it,” which shall “be ‘clear, explicit and convincing, not only as to the existence of the trust, but as to its terms and conditions.’ ” No one questions
Applying the principles above set forth, compels a reversal of this decree, since there is no proof of the alleged gift except defendant’s unsupported declaration, which is discredited by the contradictions appearing in her testimony, and by her conduct which is wholly inconsistent with her claim. Moreover, she produced no affirmative evidence “that all was fair, open, voluntary and well understood,” as she was required to do in view of the conceded old age, weakness and distress of plaintiff. It is true that, as the endorsement of the checks are absolute in form, a presumption of an intention to give may arise therefrom, but this rises no higher than defendant’s testimony, and has no bearing upon the requirements of proof in view of plaintiff’s weakness. In every aspect of the matter, therefore, we are forced to the conclusion that defendant has not proved her right to retain this large proportion of plaintiff’s comparatively small estate.
We are not unmindful of the fact that the court below has found, as a conclusion of law, that “The checks for $28,456.79 and $414.89, were endorsed and delivered to Martha Jane Ingham [defendant] as voluntary gifts, so intended by Martha McConville [plaintiff] and so received by Martha Jane Ingham”; but, as shown above, this legal result is reached by an inference founded on an erroneous conclusion regarding vital facts, and by misapplying legal principles; and this brings the case squarely within the rule stated in Worrall’s App., 110 Pa. 349, 362, later quoted in Bergner v. Bergner, 219 Pa. 113, 116: “The defendant refers to the rule that, except for plain mistake, this court will not set aside the master’s finding of fact, especially when that finding had been confirmed by the court below. In a suit in equity the finding of a master is not conclusive, as is the verdict of a jury in a trial at law. Upon exceptions to the
Defendant’s answer also avers there is an adequate remedy at law for the recovery of the money, but we need not consider this since she did not have it decided “in limine before a hearing of the cause upon the merits,” as provided by the Act of June 7, 1907, P. L. 440, did not raise it by a point at the trial, and did not argue it in the court below or here.
The decree of the court below is reversed, and the record is remitted with directions to enter a decree for an injunction and accounting so far as relates to the items of $28,456.79, $414.89 and $8,000, and for further proceedings in regard thereto according to equity practice; the costs in the court below and in this court to be paid by appellee.