Murray v. Cannon

Brent, J., delivered the opinion of the Court, There are two questions presented upon this appeal. The first is the admissibility of the testimony of Kone and wife, who are made defendants by the complainant’s hill; and the second is the gift of certain sums of money, in the Savings’ Bank of Baltimore, by James Cannon in his lifetime, to the appellant, Mary E. Murray. The bill is filed by the administratrix of James Cannon, and unless Kone and wife are “ nominal parties merely,” they are not competent witnesses under the Act of 1868, ch. 116. They are not excluded upon the ground of interest, and their release dated the 15th of April, 1813, can have no effect in making them competent. The object of the bill is to obtain possession of the book of deposit of certain sums of money alleged to have been deposited in the Savings’ Bank of Baltimore, by James Cannon, in his life-time, to which the complainant, as his administratrix, claims she is entitled. It is substantially charged in the bill, that Kone and wife, as well as the appellant, have been active parties in withholding this book, and resisting the payment over of the money to the estate. That they have been, the answers and proof in the case abundantly — 476 — establish. If wrong it is as alleged in the bill, they are partiesto.it, and the complainant has sufficient reason to insist that they should be held as parties defendant. It cannot therefore be claimed that they are nominal parties merely, and as such, competent to testify under the Act of 1868. As this is the only ground upon which they could be admitted as witnesses, their testimony must be excluded. The grounds, as presented by this record, upon which the appellant claims the money in the Savings’ Bank, are the entry in the book of deposit, and the possession of the book during the life-time of the intestate, James Cannon. The entry in the book of deposit, which corresponds with the account upon the books of the Savings’ Bank, is as follows: “James Cannon, subject to his order, or to the order of Mary E. Cannon.” Mary E. Cannon afterwards became the wife of a Mr. Murray, and is the same person who is appellant in this case under the name of Mary E. Murray. To perfect a gift, the delivery of a thing intended to be given is indispensable. ■ “ There must be a parting by the donor with the legal poioer and dominion over it. If he retains the dominion, if there remains to him a locus penitentice, * * there cannot be a perfect and .legal donation, and that which is not a good and valid gift in law cannot be made good in equity.” Patterson’s Admr. vs. Gittings’ Exr., 2 G. & J., 217; Nickerson vs. Nickerson, 28 Md., 327. The money in question was deposited in the Savings’ Bank to the credit of James Cannon, and so continued up to the time of his death. He retained dominion and control over it by the very terms of the account with the Bank, and could at any time have drawn it out, or revoked the power given to Mary E. Cannon to obtain it upon her own order. If she had drawn out any portion of the money, she would have drawn it out as .the money of James Cannon, acting in the matter as his agent, and by virtue of a then existing authority — 477 — derived from him. This agency was revoked by his death, Carey vs. Dennis, 13 Md., 18, and the Bank properly refused to recognise it after that period. But we consider the question as settled by the case of Gardner, Guar. et al. vs. Merritt, 32 Md., 82. There money deposited in the Savings’ Bank in the names of minor children was held to belong to them, and not to the estate of the grandmother, although the deposits were made by her, and the account, opened with the bank, stated them to be subject to her order. Certainly it cannot be insisted after the decision in that case, that James Cannon had parted with legal dominion and control over money standing in his name in the bank, because it was there subject to his order or the order of Mary E. Cannon. On the contrary, it was his as absolutely as it would have been hers, if the deposit had been made in her name, subject to the order of James Cannon, and had so continued in bank up to the time of his death. Nor does the possession of the book of deposit by Mrs. Murray, or her agent, affect the result in this case. Its delivery to her cannot be said to operate as a delivery to her of the money in question, or to deprive James Cannon of dominion and control over it. This branch of the case is within the principle decided in Ward vs. Turner, 2 Vesey Sen., 431. There the bill was to obtain a transfer of South Sea annuities, upon the ground that the receipts for them had been delivered to the complainant’s testator, the donor saying, “1 give you these papers, which are receipts for South Sea annuities, and will serve you after I am dead.” This was held not to be a perfected gift, because the delivery of the receipts was not a delivery of the annuities, as they could only be delivered by a transfer or something equivalent. So in this case, the delivery of the book of deposit did not constitute a delivery of the money, which it is claimed was the thing intended to be given, because its delivery could not be effected in that way. — 478 — Mr. Richardson, assistant treasurer at the hank, says the only mode, in which money can be changed from one person’s account to another’s in the hank, “is by a payment of the one account, and a new déposit in another account.” And of this the intestate, James Cannon, seems to have been fully aware, for when he wishes to make a donation of the money he had on deposit in the First National Bank of Baltimore, he adopts this plan. (Decided 3rd March, 1875.) We do not think the proof in this case is sufficient to establish a perfected gift of the money in question to the appellant by James Cannon in his life-time. It must therefore he brought into his estate, and as the decree below so directs, it will he affirmed. Decree affirmed.