Rice v. Bennington County Savings Bank

Slack, J. This is a controversy over the ownership of a deposit in the defendant bank. The plaintiffs claim that it be-, longs to the estate of Richard M. Houghton, deceased, and brought this suit to recover it for the estate. Maurer claims it as a gift inter vivos, and also that he acquired title thereto under an order given by one Hawks, concerning which more will appear later. Trial was had by jury. At the close of all the evidence the plaintiffs moved for a directed verdict: The motion — 496 — was overruled, subject to tbe plaintiffs’ exception, and there was a verdict and judgment for the claimant. While this motion is not in the most approved form we think that it fairly raised the questions: (1) That the evidence did not show a valid delivery of the order and bank book by Houghton to the claimant; and (2) that it did not show an intention on the part of Houghton to convey a joint interest in the deposit to the claimant. At least, it seems to have been so treated by the court below, and we so treat it. Castonguay v. Grand Trunk Ry. Co., 91 Vt. 371, 100 Atl. 908. Under this motion the evidence must be weighed in the light most favorable to the claimant-. Fitzsimons v. Richardson et al., 86 Vt. 229, 84 Atl. 811; Morris v. Trudo, 83 Vt. 44, 74 Atl. 387, 25 L. R. A. (N. S.) 33. It tends to show that Houghton owned a place in Bennington which he sold to Hawks, early in September, 1917, reserving a life lease. Houghton was to take in part payment the deposit in the defendant bank, which Hawks then owned. He told Hawks that "he wanted the book payable to himself or Charles Maurer, or the survivor of either.” Hawks went to the bank where the deposit was, accompanied by Maurer,^,to find out how the transfer should be made to meet Houghton’s wishes. He there procured a blank order into which Maurer there wrote the words, ‘ ‘ Richard M. Houghton or Charles A. Maurer, or either, or the survivor of either of them.” They then returned to Houghton’s house, the place sold to Hawks, the latter figured the amount due on the deposit, inserted it in the order and signed it; Maurer signing as a witness. It did not appear that Houghton knew that Maurer went to the bank with Hawks or that he had to do with writing the order. Maurer' drew the deed from Houghton to Hawks and the life lease to Ploughton, at Houghton’s request, and was at the latter’s house in connection with this transaction, when the order was completed and delivered. The material part of the order follows: "Sept. 5th, 1917. "Treasurer Bennington County Savings Bank: "Pay to the order of Richard M. Houghton or Charles A.' Maurer, or either, or the survivor of either of them,” etc. Hawks was called as a witness by the plaintiffs,' and, after stating who was present when the deed was signed, testified touching the delivery of the order and bank book as follows:' — 497 — “Q. As this part of the consideration was passed what did you do with this book and order personally? A. I gave them to —on the table to Uncle Richard and Charles Maurer. “Q. You left them on the table? A. Yes, sir, I laid them on the table. ’ ’ It appeared that the table referred to was Houghton’s kitchen table; that Houghton, Maurer, and one Spencer were present at the time; that immediately following the incident testified to, the witness took his deed and went away. On crQssexamination by the claimant the witness testified: “Q. And then you delivered the book and order, as you have already stated, to Uncle Richard Houghton? A. Yes, and the cheek.” Recalled by the claimant, the witness testified: “Q. You testified in your direct yesterday about the house of Richard Houghton when the deeds were delivered and this pass book and order were delivered to Mr. Houghton and Mr. Maurer. Now I ask you if after that delivery, as you have stated, you saw that pass book in Mr. Maurer’s hands? A. Yes, sir. “Q. And also in Mr. Houghton’s? A. Yes, .sir. “Q. Right on that occasion, this was? A. Yes, sir, right then. ’ ’ The claimant called his brother and one Cole, who testified that they saw the order and bank book in the claimant’s possession at his office a short time after the order was given. The latter part of September, Hawks helped Houghton clean out the latter’s safe and then found the order and bank book among other papers of Houghton in the safe. They were placed in an envelope, Houghton’s name written thereon, and Hawks, accompanied by Houghton, went to the First National Bank of Bennington, where the envelope and its contents were delivered to the president of that bank; Hawks then telling him in the presence of Houghton: “Uncle Richard would like to have you take care of that envelope for him.” The envelope and its contents remained at that bank continuously thereafter until after the death of Houghton, which occurred the following November. The deposit still stands on the books of the bank in the name of W. E. Hawks, and it did not appear that either Houghton or the claimant ever tried to have it transferred or to draw any part of it. — 498 — At the time this order was given, Honghton was 78 or 79 years old. He had quite a large property and no relatives living, nearer than nephews and nieces. What his feelings toward them were did not appear. He had known the claimant more than .twenty years and thought a great deal of him, both as a man and as a lawyer; referred to him as “My boy,” and “My Charlie,” and one witness testified that he once said to him ‘ ‘ I wish I had a boy like that.” During all that time the claimant did such law business (the amount not appearing) as Honghton had to do, gratis. Considering these facts established, as we must, under this motion, do they tend to show a valid gift inter vivos f To constitute such a gift there must be an intention on the part of the donor to transfer the title to the property to the donee immediately and irrevocably, accompanied by such delivery as will place the donee in complete possession and control of the same, unless delivery is to a third person for the donee, the effect of which we do not need to consider. While it is true that the courts have relaxed, somewhat, the rigor of the old rule as to delivery, they have never departed from the rule that something more is requisite to constitute a gift than the expression of an intent or purpose to give. The donor must not only signify his purpose to give, but he must deliver. And so essential is delivery as a factor in the transaction that it is said: “-Intention cannot supply it; words cannot supply it; actions cannot supply it; it is an indispensable requisite without which the gift fails, regardless of the consequences.” The delivery must be made with the intention, on the part of the donor, that title to the subject-matter of the gift shall pass immediately, and it must be so full and complete that, if he resumes control over it without the consent of the donee, he will be answerable in damages as a trespasser. It matters not whether the subject of the gift be a horse, carriage, bond, note, certificate of credit, or bank deposit; both a donative intention and delivery must be clearly established. And the same rule obtains where the subject of the gift is a deposit standing as the deposit in this case would have stood had it been transferred in accordance with the mandate of the order, and where it was made, as in this case, by the direction- of the. donor with his funds. Cochrane v. Moore, 12 Eng. Rul. Cases, 410 (Lord Esher’s Opinion); Bean v. Bean, 71 N. H. 538, 53 Atl. 907; Whalen v. Milholland, 89 Md. 199, 43 — 499 — Atl. 45, 44 L. R. A. 208; Colmary v. Fanning, 124 Md. 548, 92 Atl. 1045; McCullough v. Forrest, 84 N. J. Eq. 101, 92 Atl. 595; Taylor v. Coriell, 66 N. J. Eq. 262, 57 Atl. 810; Schippers v. Kempkes, (N. J. Err. & App. 1907), 67 Atl. 74, 12 L. R. A. (N. S.) 355; In re Bolin, 136 N. Y. 177, 32 N. E. 626; Schneider v. Schneider, 122 App. Div. 774, 107 N. Y. S. 792; Meyers v. Albert, 76 Wash. 218, 135 Pac. 1003; Denigan v. San Francisco Savings Bank, 127 Cal. 142, 59 Pac. 390, 78 Am. St. Rep. 35; Barstow v. Tetlow, 115 Me. 96, 97 Atl. 829. The latter case and Trust Company v. Scanlon, 26 R. I. 228, 58 Atl. 786, 3 Ann. Cas. 863, are cited in the claimant’s brief. The court held in those cases that a depositor of money in his name and the name of another might constitute the latter a joint'tenant, by a gift of an interest in the deposit, but they recognize the necessity of a delivery. In the former, a Maine case, the deposit in controversy was in a Rhode Island bank, and the court held that the law of that state governed in the determination of the appellant’s claim of title to the fund as the surviving joint tenant of the deposit. The deposit was in the names of “Amanda M. Kent or Ellen J. Tetlow or the survivor of them.” Mrs. Kent delivered the deposit book to Mrs. Tetlow soon after the deposit was made, and the latter retained possession of it ever after. In Trust Company v. Scanlon the deposit was in the names of “Patrick Scanlon or Dennis F. Scanlon, and payable to either or the survivor of them. ’ ’ The donor delivered the book to the donee, “saying that it was his to do with as he pleased; that he could draw the whole or any part as he wished; and that he must go to the bank the next day to sign the book. ’ ’ From that time the book remained in the donee’s possession, except on two occasions when the donor drew small sums from the bank with the consent and at the request of the donee. In Raferty v. Reilly, 41 R. I. 47, 102 Atl. 711, another Rhode Island case, decided in 1918, John Henry made a deposit and took a certificate payable “to fhe order of John Henry and Edmund Reilly or the survivor,” and delivered the certificate to Reilly, who retained it to the time suit was brought, after the death of Henry. Henry was allowed to draw part of the deposit, but Reilly always went to the bank with him and retained complete possession of the certificate. The delivery shown in each of these cases was sufficient to pass title to the entire deposit. Watson v. Watson, 69 Vt. 243, — 500 — 39 Atl. 201; Goodrich v. Rutland Savings Bank, 81 Vt. 147, 69 Atl. 651, 17 L. R. A. (N. S.) 181. The donor divested himself of all control, both present and future, over the same. The burden is with the claimant to establish that there was a gift. Meyers v. Albert, supra; 20 Cyc. 1219; 12 R. C. L. 971; In re Bolin, supra. The form in which the order was drawn does not import a gift, and, standing alone, is not evidence of one. Schick v. Grote, 42 N. J. Eq. 352, 7 Atl. 852; Taylor v. Henry, 48 Md. 550, 30 Am. Rep. 486; Denigan v. San Francisco Savings Bank, supra; In re Bolin, supra; Schneider v. Schneider, supra. What took place at Houghton’s house at the time the papers passed did not tend to show a delivery to the claimant. On direct examination speaking of the order and deposit book, Hawks testified, “I gave them to — on the table to Uncle Richard and Charles Maurer,” and on cross-examination he said that he “delivered them to Uncle Richard Houghton.” It is apparent that what he actually did was to leave them on Houghton’s table, and that what he said about who he delivered them to was a mere inference on his part. But suppose that, instead of placing them on the table, Hawks had actually delivered them to the claimant, but with no authority for so doing except the language of the order, which is all that. appears in this case. • No one would seriously contend, we apprehend, that that would constitute such a delivery by Houghton as the law requires to create a valid gift. The mere fact that Houghton had requested the order to be written as it was did not authorize Hawks to deliver it and the book to the claimant for the purpose of passing title thereto to the claimant. They belonged to Houghton, regardless of the phraseology of the order. He had paid for them with his property. They were his property, in another form, as much as the house, which he gave in exchange for them, had previously been They were his, and not Hawks’ to give. The fact that Hawks saw them in the hands of the claimant after they were placed on the table is of no force under the circumstances of the ease. The claimant was present as the attorney of Houghton to attend the execution of the papers necessary to complete the transaction. The transfer of the bank deposit was part of the transaction, and the claimant would have been remiss in the performance of his duty to his client had he failed to make such examination of the papers that evidenced the transfer of this deposit as was necessary to satisfy him of their validity. Neither does the — 501 — bare fact that the book and order were later seen in his possession tend to show a delivery. It did not appear when, by what means, or for what purpose they came into his possession. He did not attempt to exercise any act of ownership over them while in his possession — to draw the. deposit or have it transferred on the books of the bank — and returned them to Houghton in a short time. It may be conceded that the relations between these parties, and the financial condition of Houghton, were such that a gift in praesenti, or by will, by him to the claimant, would not have been considered an unnatural act on his part. The fact that Houghton directed the order to be made as it was may be considered as tending to show a then intention that the claimant should have part or all of the deposit, sometime, but when? Immediately, or upon the death of Houghton? The fact that the deposit was never transferred on the books of the bank and that Houghton retained possession .and absolute control of both the book and the order to the time of his death, except for the short period when the claimant’s evidence tended to show them in the latter’s possession, would seem to indicate the latter. In our judgment the evidence does not tend to show a donative.intention on the part of Houghton to create a gift in praesenti, nor does it tend to show a valid delivery. It is said by the claimant that it has been the practice in this State for many years to transfer deposit books by order like the one before us, and that this is provided for by G-. L. 5376. Whatever the purpose or scope of this statute, neither its provisions, nor any practice that we are aware of relating to the transfer of bank deposits, have relieved a party claiming a deposit by gift from proving the facts necessary to constitute a gift. The claimant attempts to distinguish this case from .cases found in the books, on the ground that in those cases the deposit in controversy originally stood in the name of the alleged donor while here it stood in the name of Hawks. The only importance that the court in those cases attached to the fact that the deposit originally stood in the name of the donor was to show that he was the sole owner of the deposit at the time of the alleged gift. The fact that the deposit in this case stood in the name of Hawks, at the time the order was given, does not affect the situation. The deposit, as we have already said, belonged to Houghton. It is — 502 — not claimed that it ever belonged to the claimant prior to the execution of the order. The claimant further contends that the order created a joint interest in the deposit in Houghton and the claimant, with the incident óf survivorship, and that a delivery of the bank book and order by Hawks to either was in legal effect a delivery to both, and that the claimant’s rights in the deposit were fixed when the book and order were delivered by Hawks, whether to Houghton or the claimant. This position is untenable. For reasons already stated, the claimant has no better right to this deposit than he would have, had the money been handed to the bank officials by Houghton and an account opened in the names of Houghton and the claimant, as directed in the order. In Staples v. Berry, 110 Me. 32, 85 Atl. 303, money belonging to Fred E. Savage was deposited to “Nellie A. Savage and Fred E. Savage, may be drawn by either in any event.” The deposit book was in their joint possession most or all of the time, each having access to it. Fred died and the widow claimed the deposit as surviving joint tenant. Touching this question, the ■ court said: “It is laid down by all the authorities that there are four essential characteristics of a joint tenancy: Unity of interest, unity of title, unity of time and unity of possession. * * * Unity of title means that the interests must accrue by one and the same conveyance; and unity of time that the interests must commence at one and the same time. * * # This would seem to contemplate conveyance or devise by A., the sole owner, to B. and C., as joint tenants, not as splitting up A.’s ownership so that B. becomes a joint tenant with A. But granting for the sake of argument that this might be done by carefully worded conveyance, it can hardly be said that this naked book entry meets the requirement which is so jealously guarded by the law, and that is the only evidence in the ease to disclose the husband’s intention. In the third place, a joint tenancy implies that the interests of the joint holders remain the same until death, and then that the survivor takes all. Here, according to the book entry, either party could at any time withdraw the entire deposit, so that the joint property would be dissipated and the survivor would take nothing. This is utterly at variance with the attributes of a joint tenancy.” It was held that a joint tenancy was not established. — 503 — ■ The claimant in this case concedes that Houghton during his 'lifetime could have drawn and used the money on deposit, and it is not suggested that he would have been liable to the claimant had he done so. This is inconsistent with the claim that they were joint tenants in this deposit. A joint tenant of personal property has such title thereto that he may maintain an action against a co-tenant who sells or destroys the same. Lewis v. Clark, 59 Vt. 363, 8 Atl. 158; Wilson & Gibbs v. Reed, 3 John. 174; Hyde v. Stone, 9 Cow. (N. Y.) 230, 18 Am. Dec. 501; Farr v. Smith, 9 Wend. (N. Y.) 338, 24 Am. Dec. 162; Lucas v. Wasson, 14 N. C. 398, 24 Am. Dec. 266; Andrews v. Johnson, 17 Pa. St. 373, 55 Am. Dec. 565. Moreover, the phraseology of the order does not import a joint tenancy, or joint interest. The language is “Richard M. Houghton, or,” etc.; not Richard M. Houghton and. While courts have construed “or” for “and,” and vice versa, where such construction was necessary to carry out the manifest intention of the parties, such construction has never been resorted to for the purpose of supplying an intention not otherwise appearing. The provisions of G-. L. 5376 are for the protection of the bank paying money to persons named in deposits made in the manner specified in the statute, and do not change or affect the title to such deposit. ' The plaintiffs’ motion should have been granted. The plaintiffs excepted to the failure of the court to comply with that part of their third request which is as follows: ‘ ‘ Complete and unconditional delivery is essential to the perfection of such gift; for when the donor retains dominion over the property there can be no legal and perfected donation. There must be a parting by the donor of all present and future legal power and dominion over the property.” While the court did not follow the language of this request, an examination of the entire charge shows that the subject was fairly dealt with, and therefore the exception is without merit. The plaintiffs excepted to the failure of the court to comply with their fourth request which was as follows: “While a gift from a client to an attorney during the relation is not void ipso facto it is viewed by the courts with the greatest suspicion.” This request calls for a statement of an abstract proposition of law without reference to the facts and circumstances appearing — 504 — in the case on trial. While the statement embodied in the request is to be found in some of the books, the cases show that where this degree of suspicion has been cast upon the transaction under consideration, something more appeared to create suspicion than the mere fact that the alleged donee was attorney for the alleged donor. The nature of the gift, its value, the wealth of the donor, and other things are to be considered in determining the degree of suspicion. Could it be said that a trivial gift by a wealthy client should be viewed with the greatest suspicion? We think not. The plaintiffs were not entitled to have this bald proposition stated to the jury. To the charge on this subject, as given, no exception was taken.