Union Trust & Savings Bank v. Tyler, 161 Mich. 561

161 Mich. 561 | Mich. | 1910

Brooke, J.

(after stating the facts). It is urged by appellant, and we do not understand it to be questioned by appellee, that the indorsement upon the bankbook was testamentary in character, and wholly inoperative to convey any interest in the fund, because lacking in all the statute formalities relative to the execution of a will. There is no doubt that appellee can take nothing by virtue of the writing. We think it may be considered, however, as bearing upon the intention or desire of deceased to possess her daughter of this fund at the time of her death. At the time the indorsement was made, it is evident that deceased intended to retain possession and control of the deposit during her lifetime, but supposed that the indorsement would empower her daughter to draw the money after her death. Less than a month before her death, the book ( without which the money cannot be drawn ) passed from the possession of the deceased into the possession of her daughter. The evidence of a gift from the mother to the daughter is neither very clear nor very satisfactory. It is apparent that no one, except the parties, was present at the moment the transfer was made, and the daughter’s lips are sealed as to what occurred. We are, however, of the opinion that, meager as the proof of a gift is, it is still sufficient to support the inference drawn by .the circuit judge that Esther Hynan, in her lifetime, gave to the defendant Catherine Gordon the bankbook evidencing the deposit, with the intention of conferring upon her daughter a present ownership in the fund.

It may be conceded, as claimed by appellant, that the mere possession of the book by the daughter raises no presumption of ownership, but we think that the possession of the book, coupled with the mother’s statement to the daughter, in the presence of her husband, and the further statement of the mother to the witness Rankin, that she had fixed the matter so her daughter could get the money, indicates that the mother was unwilling, death being near, to have the daughter’s right to the deposit rest upon the writing, and therefore gave her the book, and with the book the deposit represented thereby. It must be borne in mind that for two years or more deceased had intended the deposit to go to her daughter at the time of her own death, and that at the time the daughter gained possession of the book the mother was very ill, and clearly expecting to die in the near future. Conclusive evidence of a gift from parent to child is not necessary.

In the case of Love v. Francis, 63 Mich. 181 (29 N. W. 843, 6 Am. St. Rep. 290), this court said:

“ It requires less positive and unequivocal testimony to establish the delivery of a gift of a father to his children than it does between persons not related, and in cases where there is no suggestion of fraud or undue influence very slight evidence will suffice.”

See, also, Ellis v. Secor, 31 Mich. 185 (18 Am. Rep. 178); Thatcher v. St. Andrews’ Church, 37 Mich. 264, and Bangs v. Browne, 149 Mich. 478 (112 N. W. 1107), and cases there cited.

That a valid gift of the money deposited in a savings bank may be effected by the delivery, to the donee, of the depositor’s passbook, with intent to give the donee the deposit represented by it, is settled law. See 20 Cyc. p. 1239, where the authorities from the various States are collected. Reed v. Whipple, 140 Mich. 7 (103 N. W. 548); State Bank of Croswell v. Johnson, 151 Mich. 538 (115 N. W. 464).

The judgment is affirmed, with costs.

Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.