177 A.D. 246 | N.Y. App. Div. | 1917
Jenks, P. J., Stapleton, Mills and Rich, JJ., concurred; Carr, J., not voting.
The following is the opinion delivered at Special Term:
The facts in this case are peculiar and unusual, but the law applicable to them has been laid down in many decisions. The peculiarity of the facts lies in the arrangement made between the plaintiff and his wife, wherein his savings from his business were to be kept in numerous savings bank accounts standing in different names. For a great number of years these accounts have been in the name of the defendant, in her name in trust for her daughter, and in the name of the plaintiff. Thousands of dollars of the plaintiff’s money have been thus deposited in various accounts from time to time, and a correct statement kept by him in his book of investments, showing the condition of each bank account, in whose name it was kept, and the interest and deposits added thereto, and the drawings therefrom. As the plaintiff was not always carrying on business in his own name, it may be that he thus sought protection for his family in case of financial catastrophe, or, as testified to by him, and also by his wife, it may have been that he desired to make it simple and easy for his wife and daughter to get his money in case of his death. Whatever may have been the cause, all the money deposited in the bank accounts in question was money earned by the plaintiff in his business, and seems to have been his only method of saving or of investing, with the exceptions of a few pieces of real estate. From these accounts money was occasionally drawn for the use of the plaintiff in his business, and, • on one occasion, to pay off a mortgage upon his real estate. The bank books never left the plaintiff’s possession, in the sense of a delivery to constitute a gift. They were kept in a safe deposit box, or in a safe in the dwelling house, to which both the plaintiff and the defendant had access, or else in the plaintiff’s safe at his office.
It is quite evident, even from the testimony of the defendant, that the method of keeping these savings bank accounts was for her protection in case of her husband’s death, while not preventing his use of the money, should it be needed in his lifetime. The detailed manner in which the plaintiff kept the account of all these savings in his personal ledger, and of the interest added thereto at stated periods, and the use by him of
The defendant, while claiming that a gift of all these moneys had been made to her by the plaintiff, intimates that the purpose was to protect her in case of his death, and does not press her claim so far as to exclude him from his present right to the use of these moneys, if his business made it necessary. But a gift inter vivos cannot be made to take effect at death, and where there is neither the intent to part absolutely with the title at the time of the alleged giving nor such an actual or constructive delivery as to deprive the alleged donor of power and control over the thing given there can be no gift. The deposit by the plaintiff of his money in the name of his wife does not, in and of itself and while the parties are living, establish a gift, and cannot do so in view of the facts and circumstances in this case, where the evident intention of all parties was to the contrary. (Beaver v. Beaver, 117 N. Y. 421, 429; Matter of Bolin, 136 id. 177; Curry v. Powers, 70 id. 212, 216; Cunningham, v. Davenport, 147 id. 43; Augsbury v. Shurtliff, 180 id. 138, 142; Schneider v. Schneider, No. 1, 122 App. Div. 774, 779; Young v. Young, 80 N. Y. 422.)
These cases further establish the principle that having the joint possession of books and deposits by the wife and husband would not, in and of itself, constitute a gift. The fact that the plaintiff and the defendant, after so many years of married life, have been brought to litigation over these deposits, is very
There has been no gift, and the plaintiff in the action which has been tried before me is entitled to judgment as prayed for, but, of course, without costs.