This is an action for an accounting brought by the executor of the will of William H. Pelton against Pelton’s surviving partner, John H. Dumas. Trial was by jury who found the defendant liable to account. Judgment on the verdict, execution stayed and cause passed to this court before an accounting and before final judgment.
The business of the partnership was buying and selling cattle. At the start, in 1938, Pelton furnished the money which was deposited in a checking account in the Randolph National Bank entitled “W. PI. Pelton, Special Account.” A deposit book was issued having on its cover the title “Deposits of W. H. Pelton Special” which was used without change of that title by the partnership during its entire existence and until the account was closed by the defendant on September 29, 1949, the morning after the testator’s death.
On June 11, 1943, Pelton was confined in the hospital. On that date he and Dumas signed a signature card obtained from the bank which read as follows “W. H. Pelton (Special Acct) subject to withdrawal of either and payable to survivor W. H. Pelton John H. Dumas June 11, 1943.” Dumas then delivered the card to the bank and the bank changed the checking account to read “W. H. Pelton or John H. Dumas Special Account.” At that time the account amounted to about $1,100.00. The partnership continued to deposit its funds in and pay its bills from that account. With possibly one or two exceptions Pelton made all deposits and issued all the checks until his last illness. On the date of his death, September 28, 1949, the balance in the account was $19,338.05. The defendant claims he owns the money in that account and he is not obliged to account for it.
At various times during the years the partnership existed Dumas told Pelton he was short of money and Pelton drew checks on the bank account and gave'them to Dumas. They totaled $2,000.00. At another time the partnership needed money and Pelton deposited $600.00 of his own funds in the bank account. Dumas tried at various times to persuade Pelton to take that $2,600.00 out of the bank account but each time Pelton refused to do so and said he did not want it.
The defendant has briefed numerous exceptions. They are all based on his claim that the case is entirely controlled by V. S. 47, *15 sections 8779 and 8780. These two sections of the statutes are as follows:
“8779. Joint deposits. When a deposit has been made in a bank in the name of two or more persons, payable to any one of them, or payable to the survivors or any one of the survivors, such deposit or any part thereof, or any interest or dividend thereon may be paid to any one of such persons, whether the others are living or not, and the receipt or acquittance of the person so paid shall be a valid and sufficient release and discharge of the bank for any payment so made.”
“8780. Same; evidence of. The recital of the words “payable to either or to the survivor” or words of like effect in the order creating such account and signed by the person or persons who furnish the funds for such deposit shall be conclusive evidence, as between the payees and their legal representatives, of the creation of an absolute joint account. However, nothing herein shall prevent the proof of fraud, undue influence, or incapacity, to defeat such joint interests.”
The plaintiff claims that the Uniform Partnership Act is determinative of the rights of the parties and particularly V. S. 47, § 6086-11 (d) which is as follows: “(d) On the death of a partner, his right in specific property vests in the surviving partner or partners, except where the deceased was the last surviving partner, when his right in such property vests in his legal representative. Such surviving partner or partners, or the legal representative of the last surviving partner, has no right to possess the partnership property for any but a partnership purpose.”
The Uniform Partnership Act is chapter 269 of V. S. 47, § 6105 of that chapter is as follows:
“6105. Construction. Nothing in this chapter shall affect the provisions of chapters 79, .270, and 399, and sections 1647, 2715, 2877, 2878, 5523, and 5547.”
Sections 8779 and 8780 are a part of chapter 381. Because neither chapter 381 nor sections 8779 and 8780 are mentioned in §6105 and because chapter 269 was adopted several years after sections 8779 and 8780, the plaintiff argues that if the Legislature had intended to except sections 8779 and 8780 from the provisions of chapter 269 it would be so stated. But that does not necessarily follow. The chapters and sections mentioned in § 6105 all relate to partnerships. Chapter 381 relates to banking. The various
*16
chapters and sections with which we are here concerned do not deal with the same subject matter and are not necessarily repugnant to each other. It is the fundamental rule of statutory construction that the intention of the Legislature must be ascertained and given effect.
Billings
v.
Billings,
114 Vt 70, 72,
The plaintiff relies on the two cases of
Shanahan
v.
Olmstead County Bank & Trust Co.,
217 Minn 454,
The plaintiff says that the title on the cover of the pass book determined the title to, and ownership of, the checking account. That contention is unsound under the circumstances prevailing in the present case. The plaintiff cites two decisions by the surrogate
*17
court of the State of New York:
In re Lunt's Estate,
Though V. S. 47, § 8780 makes the account in question an absolute joint account it does not prevent the proof of fraud, undue influence, or incapacity, to defeat the joint interests. There is no question raised of incapacity or undue influence. But the plaintiff claims that the conduct of the defendant under the circumstances, in view of his fiduciary relationship to Pelton, constituted fraud in law. He pleaded it and has briefed it.
The term fraud is used in various senses. It may involve an evil intent or it may consist only of a wrongful act done to the injury of another. The former is actual fraud, the latter constructive. The former involves moral turpitude or intentional wrong. The latter may exist without the imputation of bad faith or immorality.
In re Campbell's Will,
100 Vt 395, 402, 138 A 725,
Therefore zve hold that the defendant is the sole owner of the $19,338.05 which he withdrew from the checking account in the Randolph National Bank on September 29,19J/.9, and that he is not liable to account to the plaintiff for that money. The judgment to account is affirmed and cause remanded for an accounting as to any proper items.
On Motion roe Reargument
The plaintiff has filed a motion for reargument claiming that the Court erred in the opinion both in its statement of the law and of the facts. The plaintiff claims the opinion states that the Banking Act and the Uniform Partnership Act are alike, are not repugnant, and that, though the opinion states that the intention and agreement of the parties are to control the disposition of partnership property as per provisions of the Partnership Act, elsewhere the opinion states that the Banking Act, which requires no specific intent, controls.
The opinion contains no such statements. It demonstrates that even under the Partnership Act the intention and agreement of the partners control the disposition of partnership property but the opinion holds that in the case at bar the title and ownership of the checking account are determined by the Banking Act, V. S. 47, § 8780 which makes the parties’ intention conclusive.
*19 Certain facts related in the opinion as it was first written have been deleted to meet the plaintiff’s objection. These facts did not change the result. The question of ownership of the checking account ought not to have been left to the jury to decide. The motion to reargue is denied. The original entry is amended by adding "let the defendant recover his costs in this Court.” As so amended let the full entry go down.