56 Vt. 284 | Vt. | 1883
The opinion of the court was delivered by
I. The deposit by Barlow in the name of Marion Cushing, the claimant, cannot be sustained as a gift inter vivos. It was his money, and, although deposited in her name, it was made payable solely to himself during his life, he retaining the pass book and having absolute control of the deposit, and she being neither a party to, nor having any knowledge of the transaction. Where there are no conditions to a gift an acceptance
In this State and some others this rule has not been rigidly adhered to in one class of cases, viz.: Where there is a donation of money or evidence of indebtedness, like notes or bonds, and the gift is perfect in all other respects, it is not' defeated after the decease of the donor by a right reserved to recall a part or the whole of the gift during his life. Such a reservation is regarded as optional and personal to the donor, and the right expires with his life, and, if not exercised, then by his death the gift is freed from the condition of defeasance, and the right of tho donor becomes absolute. It is not strictly a modification of the general rule; because it is, in essence, a gift in trust, absolute and complete in respect to delivery, but providing, as in all cases of trust, what the trustee shall do with the money. The provision that a part or the whole shall be subject to the use and call of the donor during his life, does not defeat the gift as to the part which remains at his decease. The donor by the transfer and actual delivery divests himself of the possession and title, subject only to be brought back into his estate by recall. This is the doctrine of Blanchard v. Sheldon, 43 Vt. 512; and Barlow v. Loomis et al, lately decided in the II. S. Circuit Court of this district. See, also, Davis v. Ney, 125 Mass. 590. Whether under the authority of these cases the transaction would have constituted a perfected gift inter vivos, if Barlow had delivered the deposit book to this claimant, or some other person in trust,
II. Can this transaction be sustained as a trust, the bank being the trustee? This depends, first, on the relation between a depositor in a savings bank and the bank. Is it a trust relation or a debt and credit relation ? In a certain class of cases involving the question whether a savings bank could be taxed on its securities; and others, where the bank had become insolvent, and its business was being closed up by a receiver, and questions arose between the rights of depositors and creditors, courts have said, that as the design of the legislature in granting the charter was to promote industry and frugality, and-preserve the fruits of honest toil by enabling persons to invest in a safe and profitable manner, and contemplated no benefit to the managers, but looked only to the security and advantage of the depositors, a trust of a general or public character was created. Stockton v. Mechanics' etc. Bank, 32 N. J. Eq. 163, is an illustrative case of this kind. Savings banks are not unfreqnently called trustees in this class of cases; but I find no case where it is litdd that the relation of the bank to the depositor is a pure trust relation; but on the other hand it was lately decided in People v. Savings Institution, 92 N. Y. 7, that the primary relation of a depositor in a savings bank, to the corporation, is that of creditor and not that of a beneficiary of a trust; that the deposit when made becomes the property of the corporation ; that the depositor is a creditor for the amount of the deposit, which the corporation becomes liable to pay according to the terms of the contract under which it was made that there is nothing like a private trust between the corporation or its trustees and the depositors, in respect to the deposits. In Ide v. Pierce, 134 Mass. 260, it was held that money, depos
III. But it is further insisted in behalf of this claimant, that the transaction created a trust between her and Barlow; that is, that the latter held the bank pass book as trustee for the claimant.
The general doctrine is now settled that a perfect and completed trust is valid and enforceable, as between the trustee and beneficiary, although purely voluntary. It is not essential that the beneficiary should have had notice. But a voluntary trust which is still executory, incomplete, imperfect, or promissory, will neither be enforced nor aided. A perfect or completed trust is created where the donor makes an unequivocal declaration, either in writing or by parol, that he himself holds the property in trust for purposes named. He need not in express terms declare himself trustee ; but he must do something equivalent to it, and use expressions which have that meaning. If the intention is to make such a transfer as would constitute a gift, but the transaction is imperfect for this purpose, the court will
In the light of these settled rules, and of what Barlow did, the question is whether what he said constituted a declaration of trust. As stated by Lord Cranworth in Jones v. Lock, L. R. 1 Ch. App. 25 : “ The cases all turn upon the question whether what has been said was a declaration of trust, or an imperfect gift.”
On the 15th day of January, 1880, Sidney Barlow deposited in the defendant bank $800, of his own money, and took therefor deposit book No. 10,973, issued by the bank, which he always kept and controlled. No name of a depositor appeared on any deposit book, but merely a number. He directed the treasurer to enter the name, Marion Cushing, this claimant, on the bank register as the person in whose name the deposit was' made, and to enter, “ Payable to S. Barlow ”; and this was done.
The money deposited was Barlow’s. The pass-book was the evidence of the deposit, and took the place of the money in his hands. No species of property could be more easily transferred or delivered. . Nothing was said indicating an intention to hold the book in trust other than the direction to make said entry on the bank register.
In Taylor v. Henry, 48 Md. 550, one H. deposited in a bank a sum of money belonging to himself, to the credit of himself and his sister M., so that the account was entered, “ H. M. and the survivor of them, subject to the order of either, received $1850.” A short time after, H. drew out $50, and died in about a month leaving the $1800 on deposit. Held, that since H. retained the power and dominion over the money, there was not
Other leading cases to the same import are Mitchell v. Smith 4 De G. J. & S. 422; Scales v. Maude, 6 De G. M. & G. 43; Jones v. Lock, L. R. 1 Ch. App. 25; Heartley v. Nicholson, L. R. 19 Eq., 233; Young v. Young, 80 N. Y. 422.
In Martin v. Funk, supra, cited by counsel for this claimant, the depositor declared at the time that she wanted the account to be in trust for the plaintiff -(who was so claiming it), and it was so entered.
In Barker v. Frye, 75 Me. 29, the depositor informed the treasurer of the bank that she desired to make a deposit for each of four grandchildren, naming B. as one of them, to which she proposed to make additions, etc., and saying, “ She wanted to do something for the children and took pass books in their names, though subject to the order of the depositor during her lifetime.
In these cases it was held that the deposit created a valid trust, the depositors holding the pass books as trustees, but they differ from the case at bar : In the New York case there was a
plain declaration of trust; in the Maine case the declaration, though not of a trust in terms, strongly imports the intent to create one. Two English cases, not cited by the claimant but tending to support her claim of a trust, viz.: Richardson v. Richardson, L. R. 3 Eq. 686, and Morgan v. Malleson, L. R. 10 Eq. 475, have been repeatedly criticised in this country and England, and are regarded as contrary to the doctrine settled by the weight of authority, and virtually overruled.
There is in other cases an apparent lack of harmony in some respects; notably as to the importance of notice to the beneficiary, and as to the effect of the donor’s retaining the custody, control and use of the fund ; but this will be found to exist more in suggestions in opinions than in decisions rendered.
Our conclusion in this case is, upon what we think is the weight of authority and the soundest view, that the transaction did not create a trust between the claimant and Barlow.
These views render it unnecessary to pass upon the admissi
Judgment affirmed.