Opinion
No. 36444.
September 22, 1947.
1. EXECUTORS AND ADMINISTRATORS.
Suit against bank and administratrix praying that funds, which had been deposited in bank by deceased with notation on passbook that deposit was payable on deceased's death to complainant, be adjudged to belong to complainant and not to deceased's estate, was properly dismissed without prejudice, where it had been brought contrary to statute, within six months of appointment of administratrix, since administratrix was a "necessary party" without whom court could not properly proceed (Code 1942, sec. 612).
2. EXECUTORS AND ADMINISTRATORS.
Claimant's demand for money, which had been deposited by deceased in bank with notation on passbook that deposit was payable to claimant on deceased's death, was not a "claim" against deceased's estate capable of being probated.
3. EXECUTORS AND ADMINISTRATORS.
If claimant's demand for money, which had been deposited by deceased in bank with notation on passbook that deposit was payable to claimant on deceased's death, be considered as a suit against deceased's estate, then bank was a "necessary party" without which no final decree could properly be made.
APPEAL from the chancery court of Claiborne county. HON. R.W. CUTRER, Chancellor.
Howie, Howie McGowan and Jackson Young, all of Jackson, for appellant.
The court erred in holding that the sum of $8400 in this savings account was not a trust fund in which Eliza Matthews, appellant, was the cestui que trust and Mary Jane Buggs, deceased, was the trustee.
The declarations and actions of the trustor were sufficient to effect such a trust.
Hiserodt v. Hamlett, 74 Miss. 37, 20 So. 143; Ladner v. Ladner, 128 Miss. 75, 90 So. 593; Williams et al. v. Bailey, 174 Miss. 760, 165 So. 439; 7 Am. Jur. 306, Sec. 434; 2 Pomeroy, Equity Jurisprudence, Sec. 997.
The retention of the passbook was not inconsistent with this trust.
Cazallis et al. v. Ingraham et al., 119 Me. 240, 110 A. 359; Hudson Trust Co. v. Holt, 107 N.J. Eq. 24, 169 A. 516; Martin v. Funk, 31 Am. Rep. 46; Minor v. Rogers, 40 Conn. 512.
A constructive delivery of the passbook was sufficient.
Eagle Building Loan Ass'n v. Fiducia et al., 135 N.J. Eq. 7, 35 A.2d 116; Note, 157 A.L.R. 926.
The actions and declarations of the trustor were sufficient, although the words "In Trust" were not used.
Cazallis et al. v. Ingraham et al, supra; Foschia v. Foschia et al., 158 Md. 69, 148 A. 121; Gerrish v. New Bedford Institution for Savings, 35 Am. Rep. 367; Ray v. Simmons, 23 Am. Rep. 447; 7 Am. Jur. 306, Sec. 434.
Under the trust here created, the equitable title vests in praesenti to be enjoyed in futuro.
An equitable title vests in praesenti.
Hiserodt v. Hamlett, supra; Ladner v. Ladner, supra; Eagle Building Loan Ass'n v. Fiducia et al., supra; Hollowell Savings Inst. v. Titcomb (Me.), 57 A. 249; Hudson Trust Co. v. Holt, supra; Milholland v. Whalen, 89 Md. 212, 43 A.2d 43; Minor v. Rogers, supra.
The validity of the trust is not affected by the fact that benefits of the trust will occur upon the happening of a condition.
Hiserodt v. Hamlett, supra; Bath Savings Institution v. Hathorn, Admr., et al., 88 Me. 122, 33 A. 836, 32 L.R.A. 371, 57 Am. St. Rep. 382; Hudson Trust Co. v. Holt, supra.
Although irrevocable trust is actually created, construction that trust was revocable will not affect validity of trust.
This trust having once been established is irrevocable.
Anderson v. Love, 169 Miss. 219, 153 So. 369; Bryant v. Sevier et al., 197 Miss. 457, 20 So.2d 582; Nelson et al. v. Ratliff et al., 72 Miss. 656, 18 So. 487; Cazallis et al. v. Ingraham et al., supra; Gobeille v. Allison, 30 R.I. 925, 76 A. 354; Matter of Totten, 179 N.Y. 112, 71 N.E. 748, 70 L.R.A. 711, 1 Ann. Cas. 900; Petition of Atkinson et al., 61 R.I. 413, 16 A. 712, 3 L.R.A. 392, 27 Am. St. Rep. 745.
Even though construed to be revocable, there was no revocation or attempted revocation by the trustor.
The funds deposited in the Mississippi Southern Bank constitute a voluntary trust fund in which the Mississippi Southern Bank was the trustee and the appellant was the cestui que trust or beneficiary.
Boyle v. Dinsdale et al., 45 Utah 112, 143 p. 136; Drinkhouse v. German Savings Loan Ass'n. (Colo), 118 p. 953; Eaton v. Blood (Iowa), 208 N.W. 508, 44 A.L.R. 1516.
The savings account deposit of $8400 constituted a good and lawful perfected gift from Mary Jane Buggs to Eliza Matthews.
Carradine v. Collins, 7 Smedes M. 428; Harmon v. McFarlane, 135 Miss. 284, 99 So. 566; In re Lewis' Estate, 194 Miss. 480, 13 So.2d 20; Leverette v. Ainsworth, 199 Miss. 652, 23 So.2d 798; Johnson v. Grice, 140 Miss. 562, 106 So. 271; Pace v. Pace, 107 Miss. 292, 65 So. 273; Bergovich v. Kruljac, 38 Wyo. 365, 267 p. 426, 60 A.L.R. 1046, 1055; Broome v. Broome, Adm. 4 B. Man. 535; First National Bank v. Mulich, 83 Colo. 518, 266 P. 1110; Herring v. Elliott, 218 Ala. 203, 118 So. 391; Hudson v. Protestant Episcopal Church, 171 Wisc. 238, 177 N.W. 14; In re Eliott's Estate, 113 Pa. Super. 350, 173 A. 880; In re Fenton's Estate, 182 Iowa 346, 165 N.W. 463; In re Hansen's Estate, 205 Iowa 766, 218 N.W. 308; In re Higgin's Estate (Iowa), 222 N.W. 401; In re Van Wormer's Estate, 255 Mich. 299, 238 N.W. 210; McLeod v. Brown, 210 Ala. 491, 98 So. 470; Novak v. Reeson, 110 Neb. 229, 193 N.W. 348; Ridden v. Thrall, 125 N.Y. 572, 26 N.E. 627, 11 L.R.A. 684; Snidow v. Brotherton, 140 Va. 187, 124 S.E. 182, 40 A.L.R. 1246; Sorrels v. Collins, 110 Ga. 518, 38 S.E. 74; Weber v. Salisbury, 149 Ky. 327, 148 S.W. 34; Weiss v. Fenwick, 111 N.J. Eq. 385, 162 A. 609; Williams v. Letton, 228 Ky. 371, 155 S.W.2d 296; Whiteman v. Backus, 102 W. Va. 454, 135 S.E. 390; 38 C.J.S., Gifts, Secs. 2, 4, 10, 15, 18.
The appellant has a probatable claim, and such probatable claim was properly presented to the lower court.
In re Lewis' Estate, supra; Yates' Estate v. Alabama-Mississippi Conference Ass'n of Seventh Day Adventists, Inc., 179 Miss. 642, 176 So. 534; Leverette v. Ainsworth, supra: Reedy v. Alexander, 202 Miss. 80, 30 So.2d 599; Code of 1942, Sec. 1281.
Vollor, Teller Biedenharn, of Vicksburg, and G.S. Watson, of Port Gibson, for appellee.
The claim of appellant is not allowable against the estate of Mary Jane Buggs.
Reedy v. Alexander, 202 Miss. 80, 30 So.2d 599; First Columbus National Bank v. Holesapple-Dillman, 174 Miss. 234, 164 So. 232; Gray v. Love, 173 Miss. 390, 161 So. 679; Code of 1942, Sec. 612.
There is no gift causa mortis or inter vivos in favor of appellant.
Yates' Estate v. Alabama-Mississippi Conference Ass'n of Seventh Day Adventists, Inc., 179 Miss. 642, 176 So. 534.
There is no account in joint tenancy with right of survivorship.
Leverette v. Ainsworth, 199 Miss. 652, 23 So. (2) 798; In re Lewis' Estate, 194 Miss. 480, 13 So.2d 20.
There is no creation of trust here recognizable.
Yates' Estate v. Alabama-Mississippi Conference Ass'n of Seventh Day Adventists, Inc., supra; Cassedy v. Wells, Jones, Wells Lipscomb, 162, Miss. 102, 137 So. 472; Meyer v. Meyer, 106 Miss. 638, 64 So. 420; Reedy v. Alexander, supra; 7 Am. Jur. 306, Sec. 434; 48 A.L.R. 189, 198; 66 A.L.R. 881, 886; 103 A.L.R. 1123, 1129.
Argued orally by Joe H. Daniel, for appellant, and by Landman Teller and G.S. Watson, for appellee.
Mary Jane Buggs was a negro woman of some education and the owner of considerable property. She had no living children or survivors of children. Her second husband, with whom she was living at the time of her death, could neither read nor write, and her attitude towards him seems to have been one of toleration rather than of affection.
On October 16, 1944, Mary Jane went to her local bank and stated to the cashier that she desired to deposit $500 with the bank in such manner that her niece Eliza Matthews, appellant here, would become the owner thereof immediately on the death of Mary Jane, the depositor. The deposit was received with that understanding and a passbook was issued and delivered to Mary Jane specifically reciting as follows:
"Mary Jane Buggs "Payable on Death "Eliza Matthews"
And on the saving ledger of the bank an account was entered and kept in conformity to the passbook.
During that and the succeeding year three other deposits were made and entered in the passbook and upon the bank's ledger in the same terms, amounting to an additional $500, and finally on October 29, 1945, a deposit of $7,400 was made, the same course being pursued as to it.
Throughout the period above mentioned Mary Jane was in poor health and she died intestate on November 17, 1945, or about three weeks after the last deposit in the bank. On December 6, 1945, appellee was appointed administratrix and she went through the papers of the decedent and found the passbook showing the aforementioned deposits. The administratrix on February 7, 1946, filed her inventory in which she listed as an asset of the estate the bank deposits aforementioned, although the bank had not, and has not yet, transferred the account on its books to the credit of the administratrix.
On May 6, 1946, appellant Eliza Matthews filed her suit against the bank and against the administratrix, in which after stating the alleged facts she prayed that the said funds in the bank be adjudged to belong to her and not to the estate. Three days before that date, to-wit, on May 3, 1946, appellant had undertaken to probate the demand as if a claim against the estate, the affidavit for probate briefly setting forth the facts of the deposits as heretofore outlined, and the clerk allowed the probate.
When term time came on the administratrix moved to dismiss the suit against her and the bank on the ground that the suit had been brought against her as administratrix within the period of six months after her appointment, contrary to Section 612, Code 1942. The court dismissed the suit without pejudice, and correctly so because the administratrix was a necessary party without whom as a defendant the court could not properly proceed and the court could not proceed with her as party because the six months statute would not permit it.
But the court did proceed to hear the matter on the supposed probated claim and erroneously so for two reasons: First, the demand is in no sense a debt or any manner of contractual obligation against the estate payable out of the general funds of the estate — it is not a claim against the estate capable of being pobated. The attempted probate was a nullity on its face when considered as a probated claim. Reedy v. Alexander, 202 Miss. 80, 30 So.2d 599. And, second, if it be considered as a suit against the estate, on which the administratrix went to trial without raising the point of the six months statute, then the bank was a necessary party without whom no final decree could properly be made. The court should have sustained the administratrix's motion to dismiss the alleged probated claim on the ground taken in her motion that the claim was not within the probate statute. In re Lewis' Estate, 194 Miss. 480, 13 So.2d 20, relied on by appellant, is not controlling here. In that case no point was made on the procedure but in the present case appellee did raise it in her motion as stated. The probated claim should have been dismissd, but without prejudice, as was done with the suit against the bank and the administratrix. We will make that order here.
Reversed and dismissed without prejudice.