*1 385 prosecution azine is of different individuals does involved proceeding against not convert the criminal from a action person judicata ap- into res one rem. The doctrine of has no plication quash to the facts of case the motion to complaint People was properly Creegan, denied. 121 Cal. Freeman, (5th 554; Judgments ed.), s. 648.

Exception overruled. All concurred.

Cheshire,

No. 4236.

Napoleon Cournoyer Savings v . Monadnock Bank & a.

Argued November 1953.

Decided December *2 Monty Ernest L. Lane; Plaut & Hanna and Faulkner, Howard B. Massachusetts) (of (Mr. Orally), plaintiff. for the Lane (Mr. orally), for Olson Olson Walter H. Gentsch and Arthur the defendants. plaintiff defendant administrator J. Both the and the

Goodnow, proceeds the two claim Cournoyer, estate of Louis questions all controversy. The transfer of law accounts in agreed and the statement of facts raises pleadings raised issue of the evidence is conclusive of whether deposits. of the bank as to either or both title Jaffrey, a resident of was August 27, 1935, Cournoyer, Louis On deposit 3584 in the and holder book number the sole owner had Canada, while in he his day, defendant bank. On sign plaintiff action, nephew Napoleon Cournoyer, card. This card bears handwritten signature withdrawal signature it the upper left corner and below number 3584 Cournoyer the first line. The card contains Napoleon on joint any either the sur- tenancy payment account “to about vivor”; fact, “bank,” neither the name of a bank nor word appears on the card than any reference to bank account other provide spaces in does the number referred to. It which residence, place birth, his plaintiff and date of noted occupation. bottom parents and wife and his On the names of his signa- printed “Deposited by” appears words opposite line completion, After its this card Cournoyer. ture of Louis Cournoyer request, the bank and taken Louis at Napoleon Cournoyer was entered on book number 3584 name of “joint account, either in the or the survivor whole” words Cournoyer book “so either Louis were added to the funds from” that account. Napoleon Cournoyer could withdraw September 16, later, Cournoyer, on Louis years Thirteen owner and holder of book number was also sole who Napoleon had the bank the name of bank, 9624 in the same enter add Cournoyer book and the same notation as to Napoleon sign purpose. Cournoyer the same did not account for signature card in with book number any withdrawal connection there evidence that ever knew that his name had 9624 and is no been added thereto but the card record of Napoleon added has a notation “see 3584 Cournoyer

name of Louis both signature.” During Cournoyer, for the lifetime of books possession Napoleon Cournoyer in his never had remained physical possession deposits of them. The these for entirely by Cournoyer was furnished Louis and had been with- Napoleon drawn at the time decease. of his never made deposits in by-laws or withdrawals from either account. One of the provided paid depositors “may of the bank ... moneys on presenting original deposit ... book.” *3 claims no under Laws of c. that as to account number admits facts are such that the decisions of this court Nashua Trust Co. v. Mosgofian, Foster, N. H. 17 and Packard v. N. controlling 95 H. are unless those cases are to No reason be overruled. for such action is not previously advanced which has been and we considered are opinion of should not be they overruled. The decision to that account must be in favor of the of the administrator Cournoyer. estate of Louis

As to account number facts differ from those Mosgofian, Nashua Trust Co. supra, respect. v. in one person Napoleon name the account, whose was added to Cournoyer, signature signed a bank, upon withdrawal card and the the later by original of that card to it delivery depositor, Louis Cournoyer, and at request, Napoleon’s added name to the “joint account, account and labeled it either survivor discussing the whole.” In this account it is asserted on behalf Napoleon signed that the card which he agree- constituted an ment himby with the bank and that ho knew of the terms under his uncle which later established this account and thereto, assented although these facts appear do not in the record. It is claimed Napoleon that on the by basis these it additional facts must himself, concluded that a contract made between Louis joint and the bank under “a account with of survivor- ship was established. joint a

That in a tenancy bank account can be created in open question. not state is Dover &c. Bank v. Tobin, 86 N. H. 209; Burns v. 83 H. Nolette, N. 489. When such a tenancy exists, by gift by contract, the rights of the survivor do not but other tenant death of the being into because of the

spring lifetime existing during the created and rights virtue of by arise in real estate joint a tenant in the same manner as of the payees, creating the estate conveyance by virtue of takes as survivor grantees. during the lives made and existed which was bank account estate, tenancy real valid a As in the case of a the characteristic acquires only property when the is created held a but is survivorship tenancy distinctive of such which is equal enjoyment and with to the payees the named Mulvanity lives. interests in it their See alienation their added to a When name another is Nute, 95 N. H. 526. payable payee to either account and it is made original depositor, joint tenancy request of the at survivor of the book to gift may delivery the later be established added, delivery that act of with person name has been whose person constituting transfer to that requisite a sufficient intent joint tenancy. creation present rights required for the those bar, In the case at whether a con- Nolette, supra, Burns v. Napoleon Cournoyer secured a made under which tract was during the lifetime of Louis was enforceable of withdrawal which surviving claim to account as is determinative joint tenant. lifetime, the situation as it existed Louis’

Considering required Napoleon, it is conclusion that plaintiff contends that *4 a card, by-laws; bank to be its by promised by the the bound signing bank; the the bank promise a to that that Louis made similar Napoleon it the account promised pay both Louis and that would during upon their lives and to the survivor to either of them that deposit exchange the book and the mutual presentation of the promises, others, each of which was consideration for of these position a This the tenancy. constituted contract of overlooks possession the the importance which attaches to of book simply nature. bank did not that it agree in cases of this The Napoleon or their pay the account to Louis lives would wishing it if only would do so the one to withdraw but that original deposit book. Both presented Napoleon Louis and part agreement vital knew that this condition was a the bank’s respective rights withdrawal, their if they and of knew agreed. money to which are said to have by-laws they which property. in this had deposited had been account been Louis’ agreement possession of the book at the time the claimed He had agreement was made. If it be was made as to assumed that no possession upon book, would no basis he right possession could have established to of the book a Hampshire during the lifetime of Louis. Sav. v. Mc New Bank Mullen, assumed, 88 N. H. 123. from hand, On other if it be that possession fact both knew that to they possession account, was essential money to withdrawal of from the agreement some made, provided was it must have either Napoleon possession could have he not. or that could There is no evidence kept that the book so to be equally was as available to Napoleon Chippendale both Louis and was case in North Savings Bank, Adams by Mass. relied plaintiff, agreement Louis, nor is there evidence an any by expressly permitting Napoleon to take by the book and make withdrawals account, from the give possession that he would of it to Napoleon on demand or under other In any circumstances. complete agreement absence of evidence Louis, by original depositor, relinquish possession that he would of the his Napoleon, Napoleon book or that was havte interest lifetime, Louis’ possession continued exclusive compels control of the book agree conclusion if an provided ment it possession was made should remain with long so Louis as he wished to retain it. Napoleon’s

If signing promise card by constituted him to be bound by by-laws bank, it by was conditioned agreement with Louis that depend withdrawals him would possession whether of the purpose granted book for that to him The stipulation parties Louis. of the that the signing card and its to the delivery bank were done “so that either Cournoyer Louis Cournoyer Napoleon’s could withdraw funds from” account adds any agreement to indicate relinquishment possession Louis of his book unless disposed he Napoleon to do so. had no to withdraw possession from the account without of the book. This never had and evidence us before indicates no basis which he *5 could secured possession as a matter of promised lifetime. Louis’ The bank to him if he had pay book acquire possession but failure to possession or a to of the book agreement under an with Louis barred him from an in interest the account Louis’ lifetime as as if he effectively signed had never card knew of the account. Nashua that which is not supra. The situation Mosgofian, Trust Co. relies, which the Nolette, supra, 494, on Burns v. existed in substantially subject being payee each were where the ap- is not reasoning of that case and the by the other defeated rights and never acquired any Napoleon never plicable here where We rights during his lifetime. power Louis’ had to affect rights Napoleon were us, that no conclude, facts before on the during the number 3584 as to account by contract established must this account the decision Louis, lifetime of of Louis administrator the estate also be favor Cournoyer.

Judgment the defendant. for J., J., C. Duncan, concurred Kenison, specially; concurred result; the others concurred. expressed views J., concurring specially: The Kenison, C. Mosgofian 97 H. dissenting Trust Co. v. N. opinion in Nashua I adopted .then now court 17, 20, 23, having been solely and concur majority opinion in that feel bound case for that reason. rehearing. opinion filed, plain- foregoing After the

On 3584, waiving rehearing tiff for moved arguments The granted, account 9624. motion was affecting 3,1954. February heard on were Monty Lane; Faulkner, B. Plant L.

Howard & and Ernest Hanna (of Massachusetts) orally), Hanna for the motion. [Mr (Mr. opposed.

Walter H. Olson orally), Gentsch and Arthur Olson plaintiff’s rehearing position J. essence of the Duncan, “theory gift, is in his statement that he relies no contained requirement delivery possession with the attendant book,” but rather “on the contract which takes the [account] requirement.” place Walsh, of that Malone v. 315 Mass. propositions “Delivery relied for the that: is bank book would not essential since the contract takes the place delivery ordinarily required. Furthermore, . . .

391 deposit such, transfer of nature but gift this is a gift rather a therein created the by the interest contract.” argument plaintiff, decedent, is made the with the a to a immed- party by acquired contract with the bank which he iate in account, entitling him, survivor, the now as the require payment support contention, of the account. In of this emphasizes the fact the bank records of “joint account, showed that the either or the account was labeled in whole,” agreed survivor and statement facts plaintiff’s recites that the name was entered on account book with the decedent’s . “so that either . . could withdraw funds ...” difficulty concluding arrangement

We no in that the made by obligated permit the decedent with bank to with- plaintiff provided drawal from the account presented required by book its rules. The real in issue what respective rights is were the the decedent plaintiff inter arrangements after se, the bank made with were completed. in We find facts of the case which serves plaintiff. to establish a beneficial in interest It in jurisdiction is settled law in this that “a one the name of himself or another, survivor, unavailing or the in is give ownership of itself to the other in interest the account.” Hampshire New Sav. Bank v. McMullen, 126; 88 N. H. Nashua Trust Co. v. Mosgofian, H. 17, 97 N. 19. This is because depositor equivocal action of the an “It apparent is act. is any one several conclusions as intention of to the the decedent might be sought reached. The interest to be . . . could conferred ... interest or one only to take effect the death of the donor.” Burns v. N. Nolette, H. 491. If it was the latter, arrangement “testamentary character, and void under the statute Id., 492; of wills.” Dover Bank &c.

Tobin, 86 N. H. former, 211. If the but the decedent retained “a ... to the donee,” funds withdrawn there was no such “divesting of the donor’s control” as would establish valid of ownership. transfer Nolette, Burns v. supra, 492. A transfer of equal power creation draw “and appropriate from fund (Emphasis withdrawn” Id., 494, is what must be shown. supplied). overcoming The burden of “presumption jurisdiction against an personal intention to create interests property” plaintiff. is Dover &c. Bank v. Tobin, supra, immediate to confer it the decedent’s intention If fact was *7 to make a plaintiff, and not testamen rights upon beneficial the (see a “convenience account” tary disposition merely establish or Bank Mc 6.4; Hampshire Sav. v. Property, 2 Am. Law of s. New appear, of intention must before Mullen, supra, 126), evidence that parties there the that plaintiff prevail. agreement can The of the plaintiff to the decedent or the purpose to enable either the a “new funds, and evidence that there was withdraw pay 'to either or survivor’ the balance then shown contract to 89, fall (Connolly 92), 92 N. H. of passbook” Bank, v. short plaintiff “appropriate in to demonstrating lacks Nolette, supra. plaintiff’s The case withdrawn.” Burns “expressed an intent of the that evidence of [decedent] performance the bank’s should receive the beneficial [plaintiff-] [of 4 gift.” as his Corbin on Contracts 87. promise] hand, The between the bank on one and agreement go to plaintiff and the decedent on the other could not be found agreement writing more detailed considered Nashua beyond 17, supra. pro- N. H. It Mosgofian, Trust Co. v. would have payment, L.,R. making 309, tected the bank in as would c. s. by presenting withdraw the funds plaintiff It entitled to understanding no any But there is evidence of book. be plaintiff the decedent that the former and should between use, appropriate withdraw and the funds to own entitled to interest, any presently entitling that should vested he enjoyment immediate future of the fund, him to either might support a demand for the account book as an incident to rights. plaintiff to

The circumstance that resided and continued upon relies to show that a Canada, reside which he “convenience intended, suggests fully not much not account” was as the account in expected to draw his own behalf lifetime. decedent’s points any understanding to

No circumstance between their in the plaintiff and the decedent became equal. any to be was no assignment were intended There decedent, promise no indication the bank’s rights by benefit and not the was for his decedent’s. pay to to equivocation implicit in the bare form of the account is The reality the terms contract shown. The unresolved may be illustrated the conclusion reached equivocation remedy a note in 53 Col. 103, way L. Rev. 116: “The best this legislative would law remodelling situation entire bank separate donative accounts. There type should be a deposit book, stating succinctly given the effect to be deposit, depositor death, both the life of the and after his Forms will be at types needed for least five of accounts . . . .” provisions recently enacted Laws c. were designed to eliminate of the survivor persons of two one, named an account such this to owner- ship payment “upon of the account the death of persons.” said They this apply do case since the decedent died on June 1951. For future, governed accounts are problems statute unlikely which confronted *8 in this action. result

Former affirmed. February 1954. J.,C.

Kenison, concurred for the reason original stated opinion.

Rockingham,

No. 4237. S.

Judith Wiseman, Ind. and as Adm’x & a.

State.

Argued November 1953.

Decided December