49 A.2d 238 | N.J. | 1946
The subject of controversy here is the title to three bank accounts standing jointly in the names of Catherine D. Rush and her son, Thomas E. Rush, the appellant, at the time of the former's death, intestate, on October 30th, 1944.
Originally, these accounts were in the name of Catherine, and all the moneys deposited therein were her property; and the learned Vice-Chancellor ruled that the later transfers of the accounts to Catherine and her son, jointly, did not constitute gifts of interests therein to the son in praesenti; that the transfers were not accompanied by a surrender of "control or dominion over the bank accounts," and that they were made "only for the convenience of the deceased."
The first transfer was made on October 18th, 1938. An account in the Lincoln National Bank, containing the sum of $1,508.20, was placed in the names of "Catherine Dugan Rush or Thomas E. Rush," who endorsed the following on the signature card, over their signatures: "We, the undersigned, hereby certify that this account and all moneys which may hereafter be credited to it belong to us as joint tenants, and that either of us may draw the whole or any part of same, and that upon the death of either of us, said moneys will thereupon be the absolute property of the survivor of us." The balance in this account at the time of Catherine's death was $1,486.26.
On July 13th, 1944, a deposit in The Howard Savings Institution, amounting to $2,082.33, was transferred to "Catherine D. Rush and Thomas E. Rush, 7/13/44, payable to either or survivor." The following was endorsed on the signature card, above Catherine's signature: "7/12/44 Kindly *614 add the name of Thomas E. Rush to my account number 526546 — make same payable to either or survivor." The balance remaining on deposit when Catherine died was $1,537.03.
On July 14th, 1944, an account in the Fidelity Union Trust Company, amounting to $1,120.51, was transferred to "Catherine Dugan Rush or Thomas E. Rush — either or survivor." The signature card contains the following notation over the signatures of Catherine and her son: "Changed to Joint Acct. 7-14-44;" and also the following statement, likewise authenticated by the signatures of Catherine Dugan Rush and Thomas E. Rush: "This account and all moneys to be credited to it belong to us as joint tenants, and will be the absolute property of the survivor of us: payment to survivor subject to inheritance tax waiver; either or the survivor to draw." There was endorsed on the back of the signature card, also over the signatures of Catherine and Thomas, under date of July 10th, 1944, the following: "We do each appoint the other attorney to endorse in the name of the payee any check, draft or note payable to the other, and to deposit the same in this account; such power may be revoked only by written notice to said Trust Company." The balance in this account was unchanged at the time of Catherine's death.
Neither the form nor the content of these accounts is, in itself, conclusive of the issue of title and ownership. If the survivor here has any interest in these deposits, it derives from a gift inter vivos and not from a contract between the co-depositors inter se; and a gift, in turn, derives its legal efficacy from the intention of the donor. The form yields to the substance; the intent is the life of the act. Gifts mortiscausa are those made in prospect of death. Gifts inter vivos
have no reference to the future, and go into immediate and absolute effect. 2 Kent's Com. 438. Gifts inter vivos and gifts causa mortis differ only in the circumstance that the latter are made in apprehension of death, become effectual only upon the death of the donor, and may be revoked; otherwise, the same principles apply to each. Dresser v. Dresser,
If the design of the transferor was not an immediately effective gift, but a transfer merely for convenience of withdrawal, with retention in himself of full ownership and absolute dominion over the fund or chose in action until his death, the transferee to take the balance of the credit in the event of his survival, without any present interest in the deposit, there was not a gift in praesenti; and the gift in case of survival, i.e., to take effect upon the death of the transferor, would be testamentary in character and void for non-conformance with the statute of wills. Vide Stevenson v.Earl,
Thus, a gift of a bank deposit in terms either of common ownership or of joint tenancy in but prima facie evidence of an intention to make a gift in praesenti; and the writing succumbs to proof in quality sufficient to overcome that presumption. This is the rationale of the case of New Jersey Title Guarantee andTrust Co. v. Archibald,
The statute dealing with savings banks has reference only to the protection of the bank in the payment of moneys deposited in accounts of this class to either of the co-depositors, even though the other be deceased. R.S. 17:9-5.1. Vide Lester v.Guenther,
Here, the title asserted by the transferee must necessarily arise from gifts rather than contracts between the depositors; and the weight of the evidence is against the existence of the requisite donative intent in each instance. The decedent was survived by eight children, some of whom no doubt made contributions to her mundane possessions. She was about eight-five years of age, and for a long time had suffered the infirmities and failing faculties which usually attend old age. Until a very short time before her death she lived with another son, in a house which they owned jointly, and she paid her *618 share of the taxes assessed against the property. This was the sum of her material wealth. The moneys on deposit with the Fidelity Union Trust Company and the Howard Savings Institution were transferred to the joint accounts shortly before her death, on the eve of her departure for a hospital. Appellant testified that his mother said to him, in the presence of his wife: "There is (sic) two bank accounts that I want you to put your name on with me and as a present from me;" but his wife quoted her as saying that "She was going to the hospital and that she wanted things taken care of, and she says, `I am going to put his name on the book and when I want a dollar he can get it for me.'" It is evident from this that the appellant's name was added to the accounts for convenience of withdrawal merely, and not to vest in him a beneficial interest in the subject-matter. Indeed, this conversation occurred in connection with appellant's withdrawal of $100 from the Savings Institution account, for his mother's use, just prior to her admittance to the hospital. And it is equally clear that the transfer of the account in the Lincoln National Bank to their joint names was not motivated by a donative purpose. This was associated, it is fairly inferable, with an endeavor to accelerate payments by a defunct building and loan association, of which she was a shareholder. It was a device to simulate a measure of need; and the evidence indicates the suggestion came from appellant. But however this may be, we are convinced that there was no intention to vest ownership in appellant. The weaknesses of age were progressive, and she had an increasing sense of dependency upon others in matters of business. The circumstances attending the later transfers serve to illuminate and characterize the motive for the first. She retained all the pass books in her possession throughout, with the exception of the Lincoln bank book, of which appellant had custody for but a brief period after the transfer. Vide149 A.L.R. 881.
There is no discernible reason for the claimed gifts. Appellant testified that the transfers were made as "presents" for what he had "done" for his mother; but there was no specification except that "at various times" his mother "was ill." There is nothing in the proofs to suggest that his brothers *619 and sister were at all remiss in this regard. The Vice-Chancellor had the decided advantage of personal observation of the parties and the witnesses and their demeanor on the witness stand.
And appellant's conduct subsequent to his mother's death was utterly inconsistent with the current claim of ownership of the bank deposits. Although his mother died seized of a half interest in the real property which she occupied prior to her death, appellant withdrew moneys from the bank accounts, or some of them, to defray expenses properly chargeable to the estate; and at a family conference called to arrange for the appointment of an administrator and the settlement of the affairs of the estate, he did not inform his brothers and sisters of the gifts now alleged. He admits he withheld this information, although he said that a few days before he advised two of his brothers that such gifts had been made. This the brothers denied. And the transfers were not divulged in the inheritance tax return; there was no claim of title to the bank credits.
Decree affirmed.
For affirmance — THE CHIEF-JUSTICE, PARKER, BODINE, DONGES, HEHER, PERSKIE, OLIPHANT, WACHENFELD, WELLS, RAFFERTY, DILL, FREUND, McGEEHAN, McLEAN, JJ. 14.
For reversal — None.
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