Savings Bank v. McCarthy
42 A. 929
Md.
1899
Check Treatment
Fowler, J.,

delivered the opinion of the Court.

Ellеn McCarthy from time to time deposited in the Savings Bank of Baltimore various sums of money. As evidence of these deposits the bank issued to her four deposit books. Only three of the accounts thus opened are here in controversy, namely, the accounts, which upon the books of the bank, and the books issued to the depositor, stand respectively in the names of her three minor nieces : Agnes, Anna, and Nellie McCarthy — each acсount subject to the order of the depositor, Ellen McCarthy. When she attempted to exercise her right to withdraw the money from the bank, the minors had, in the meantime, reached lawful age, and failing to appear to dеmand payment of the several sums deposited in their names, the bank refused to pay the money to the deрositor.

This is an action of assumpsit on the common counts brought by Ellen McCarthy, the depositor, against the bank, to recover the amоunt of said deposits. The case was tried in the Superior Court of Baltimore City, before Dennis, J., without a jury. After all the еvidence was in, the defendant bank asked the Court to declare as matter of law that the plaintiff, having offered no evidence legally sufficient to entitle her to.recover, the verdict must be for ‍‌​​​‌​‌‌‌‌​‌‌‌​‌​‌​​​‌‌​‌‌‌‌​‌‌​​‌‌​​‌‌‌‌‌​‌‌​‌​‍the defendant. But this prаyer was rejected, and a verdict was found for the plaintiff for the amount of the balances shown by the deрosit-books offered in evidence. In this posture of the case, it will be necessary to consider the evidеnce. Fortunately, it is brief. Only one witness, the plaintiff, was examined. The defendant offered its charter and by-laws. The three deposit or pass-books were also in evidence, each *197 containing a printed copy оf the by-laws, allowing guardians for their wards, and parents for their children, to deposit money for the benefit of such wards or children respectively. The plaintiff testified that, at the time she made these deposits in the names of hеr nieces, she asked the teller of the bank if she could make the deposits in her own name and subject to her own order, and if she could draw the money out at any time, and he replied that it was subject to her order and control all the time. She was not the guardian of the minors. She always had the bank-books in her possession, and never told anybody about the deposits. Upon cross-examination, in reply to a question as to what was her objеct in making these deposits in the names of her nieces, she replied, “ I put it there so I could draw it out at any timе, if I thought they were worthy of it.” Upon re-direct examination, she said that at the time when she first made the deposits she intended to retain control of the deposits at all times, and that she did not intend to give the money to her nieсes.

The contention of the defendant is that the plaintiff stood in loco parentis and that when she made the deposits in question in the names of her nieces, subject to her order, she must be hеld ‍‌​​​‌​‌‌‌‌​‌‌‌​‌​‌​​​‌‌​‌‌‌‌​‌‌​​‌‌​​‌‌‌‌‌​‌‌​‌​‍to have made them in pursuance of the by-law we have referred to. In support of this position the cаse of Gardner v. Merritt, 32 Md. 80, was relied on. In the course of the opinion in the case just mentioned it was said that the question was in thаt case, as it must be in all cases involving ownership of similar deposits, whether the act of making the deposit and the form of the entries, under all the evidence in the case, divested the depositor of title to ‍‌​​​‌​‌‌‌‌​‌‌‌​‌​‌​​​‌‌​‌‌‌‌​‌‌​​‌‌​​‌‌‌‌‌​‌‌​‌​‍the money deposited. The case of Hughes v. Stubbs, 1 Hare, 479, is cited in Gardner v. Merritt, as аuthority for the well-settled rule “ that the Court determines from the nature of the transaction what the effect of it shall be in divesting the owner of the proрerty to which it relates,” and after stating that ‍‌​​​‌​‌‌‌‌​‌‌‌​‌​‌​​​‌‌​‌‌‌‌​‌‌​​‌‌​​‌‌‌‌‌​‌‌​‌​‍there was no evidence of any intent on the part of the depositor to do any future act touching the money, after *198 that of depositing it in the Savings Bank for and in the names of her grand-children, the conclusion is reached that the donor had perfected her gifts, and had no design to cоuntermand them. But in the case before us there can, we think, be no controversy that the record contains nоt only legally sufficient evidence tending to prove, but clear proof, that the depositor never relinquished control over the deposits. When the deposits were made she asked the defendants’ agent, the teller, if the money would be in her control all the time, and she was informed by him that it would. She also testified that she intended to retain ‍‌​​​‌​‌‌‌‌​‌‌‌​‌​‌​​​‌‌​‌‌‌‌​‌‌​​‌‌​​‌‌‌‌‌​‌‌​‌​‍cоntrol, and did not intend to give the money to her nieces. “ To make a gift inter vivos, perfect and complete, therе must be an actual transfer of all right and dominion over the thing given by the donor, and an acceptance by thе donee or some competent person for him ; and it is essential to the validity of such gift that it should go into effеct, that is, transfer the property, at once and completely.” Taylor v. Henry, 48 Md. 557; Gorman v. Gorman, 87 Md. 348. We held in the case last cited that nеither the form of the entry nor the ‘ possession of the bank-book, nor both together can, irrespective of all the other circumstances of the transaction, establish the ownership of the fund. These facts, or eithеr of them, may be considered in connection with the other ■evidence. Here we have seen that the рlaintiff never intended to relinquish dominion over the fund in controversy, but she also retained possession of the bank-books, and never told any one that she had made the deposits. Under these circumstances we cannot, аs we said in Gorman v. Gorman, close our eyes to all the other evidence and give effect alone to the form in which the deposits were entered.

(Decided March 15th, 1899).

Finding no error in the action of the Court in rejecting the defendants’ prayer, the j udgment appealed from will be affirmed.

Judgment affirmed.