Opinion
No. 38/189.
12-05-1914
McCULLOUGH v. FORREST et al.
William M. Jamieson, of Trenton, for complainant. Linton Satterthwait, of Trenton, for defendant Forrest. Scott Scammell, of Trenton, for defendant Trenton Savings Fund Society.
Bill by John McCullough, administrator of the estate of Mary McCullough, deceased, against Annie Forrest and others. Decree advised for complainant.
William M. Jamieson, of Trenton, for complainant. Linton Satterthwait, of Trenton, for defendant Forrest.
Scott Scammell, of Trenton, for defendant Trenton Savings Fund Society.
BACKES, V. C. The complainant's intestate, Mary McCullough, had on deposit with the Trenton Savings Fund Society upwards of $2,700. On March 19, 1912, she caused her account to be changed upon the card system of the society and upon her passbook, by adding the name of her sister, the defendant, so that thereafter the account stood in the name of "Mary McCullough or Annie Forrest." Miss McCullough had but a single purpose in making the change, which was that the fund, or chose in action, or as much thereof as remained, should pass to her sister at her death—purely a testamentary disposition. The evidence disclosed no donative intention, i. e., a design presently to part with the ownership of, or interest in, the money; but, on the contrary, it appears that after the alteration in the account was made, Miss McCullough retained the exclusive possession of the passbook and exercised absolute dominion over the fund until her death. During that period she made one draft of a small sum, which, under the by-laws and regulations of the society, was possible only by personal application and upon presentation of the passbook. The administrator seeks a recovery of the deposit as a part of his intestate's estate, which is resisted by the sister, Mrs. Forrest, who claims it by way of a gift inter vivos. In Stevenson v. Earl, 65 N.J.Eq. 721, 55 Atl. 1091, 103 Am. St Rep. 790, 1 Ann. Cas. 49, it was held that:
"In order to legalize such a gift, there must be not only a donative intention, but also, in conjunction with it, a complete stripping of the donor of all dominion or control over the thing given."
See Taylor v. Coricll, 66 N.J.Eq. 262, 57 Atl. 810; Nicklas v. Parker, 71 N.J.Eq. 777, 61 Atl. 267, 71 Atl. 1135, 14 Ann. Cas. 921; Swayze v. Huntington, 82 N.J.Eq. 127, 87 Atl. 106.
The alleged gift must also fail because of its testamentary character. In order to effectually dispose of property to take effect upon his death, the donor must pursue thecourse laid down by our statute of wills. Stevenson v. Earl, supra.
Counsel for the defense urge the case of Dunn v. Houghton, 51 Atl. 71, as all-controlling. There the facts were similar to the circumstances in this case, except that the fund remained intact, and Vice Chancellor Stevenson held that the contract by the bank with the donor and donee, manifested by the passbook, was a legally sufficient external form to carry the gift if the donative purpose be present. Prom the facts in that case he found such a purpose, and upheld the gift. In Schippers v. Kemphes, 67 Atl. 1042, which is also a bank passbook case, with an account standing in the name of the alleged donor and donee, he reiterated this doctrine, but upon the facts, finding no donative purpose, refused to sustain the transaction as a gift, in which he was upheld by the Court of Appeals. 72 N.J.Eq. 948, 73 Atl. 1118.
The conclusion which I have reached does not conflict with the principle laid down in the Dunn Case, for there, as already stated, the Vice Chancellor found as a fact a donative purpose; a result which I have not been able to reach from the evidence in this case.
A decree will be advised, awarding the fund to the complainant. No costs will be allowed against the defendants. Peer v. Peer, 11 N.J.Eq. 432.