Opinion
Decided May 5, 1936.
A bank deposit standing in the name of A or B, or the survivor, does not create such a presumption of joint ownership as will relieve the survivor from establishing by other evidence that there was in fact a joint deposit, that the joint depositors were equal owners and that the survivor is entitled to the entire deposit. One who claims such a deposit as a gift inter vivos has the burden of establishing all facts essential to the validity of the alleged gift. The purpose of P.L., c. 261, s. 28 is to protect savings banks and not to determine the rights of depositors and those claiming under them. The fact that one of such joint depositors makes numerous withdrawals while his name is on the book does not necessarily indicate that his use of the book was more than a permissive arrangement for a common purpose. The signing of a deposit card and the temporary possession of it by the signer for the purpose of withdrawals does not necessarily manifest an intention of the alleged donor to make a gift of the deposit to such signer, or establish the unconditional delivery and acceptance which is essential to establish a gift. The claim of one as donee of a deposit having been rightly denied by the court, the executor of the alleged donor may at a subsequent hearing renounce all title to the deposit; and his testimony that he delivered the deposit book to another claimant in order to carry out the testator's express wish is admissible against the defeated claimant, and vests title to the deposit in the other claimant though he has no title by gift inter vivos. Where the sole inference that reasonably could be drawn from undisputed facts does not conclusively establish a claimant's case his motion for a decree is properly denied.
BILL OF INTERPLEADER, brought against Alexander and Margaret McMullen to determine the title to a certain bank account originally opened by the decedent Thomas McMullen. Trial by the court, who made extensive findings and rulings and then continued the case pending notice to Herbert W. Rainie, executor of the will of Thomas McMullen. After the trial Alexander McMullen filed a motion for a further hearing on the ground of newly discovered evidence. This motion was granted. On the second hearing, the executor having been joined as a party defendant, the court made certain supplemental findings and rulings including a ruling that the executor had renounced all claims to the deposit and that Margaret was entitled thereto.
To the ruling in Margaret's favor Alexander excepted. He also excepted to certain of the original findings, to the admission and exclusion of certain evidence, to the denial of certain requests, and to the denial of his motion for a decree.
The findings were in part as follows:
"On July 17, 1906, Thomas McMullen . . . opened a savings account with the New Hampshire Savings Bank in his own name. At some subsequent time, . . . at the request of Thomas, the name of Nancy McMullen, his wife, was added to the bank records and the entry upon the bank ledger and upon Thomas' pass book read `payable to Thomas McMullen or Nancy McMullen'.
"It was the custom of the bank . . . when a new name was added to an account to have this new person sign a signature card; this custom was observed in this instance and Nancy McMullen duly signed this card . . . .
"On December 5, 1929, at the request and upon the written order of Thomas McMullen the name of Nancy McMullen was stricken from the pass book and ledger card and the name of Alexander McMullen, son of Thomas and Nancy, was added in place thereof. Thomas could not write and the signature card was sent to Alexander, who lived in Massachusetts, by his mother Nancy, was signed by Alexander and duly returned to the bank. This card read: `Alexander McMullen or Thomas McMullen or survivor'.
"On June 2, 1930, Thomas withdrew from the bank the sum of $1,647 and shortly thereafter sailed for Ireland, leaving his wife Nancy in Concord. Nancy died in that city on July 16, 1930. On July 21, 1930, without possession of the pass book, Alexander withdrew from the bank the sum of $428.00 to pay funeral and other expenses. This is the only withdrawal ever made by Alexander.
"Thomas returned from Ireland in September 1930, in company with Margaret Daily, whom he had met in Ireland on a previous visit eighteen years before. Thomas married Margaret at Concord on October 31, 1930.
"On December 8, 1930, the bank, at the request of Thomas, struck out Alexander's name and substituted the name of Margaret. This was accompanied by the customary written order and signature card, the pass book and ledger card then reading `Margaret McMullen or Thomas McMullen or survivor'.
"After her marriage with Thomas, Margaret `worked out' against the wishes of Thomas, who told her if she went back to work he would strike her name from the bank book and thereafter on January 24, 1931, the bank at Thomas' request struck off the name of Margaret McMullen, the entries on the pass book and ledger card then reading `payable to Thomas McMullen'.
"On November 6, 1931, at the request of Thomas, Margaret's name was added, the entries on the pass book and ledger card then reading `Margaret McMullen or Thomas McMullen or survivor'. This addition was accompanied by the usual written order and signature card.
"All these entries subsequent to December 5, 1929, were made without the knowledge or consent of Alexander. In making these changes there was never an actual withdrawal of the funds. Thomas McMullen died testate on April 19, 1932."
It was Alexander's claim "that he and his father Thomas owned the account jointly by reason of an agreement made between Thomas and Nancy." Alexander testified to the contents of a letter written to him by Nancy in December, 1929, in which she informed him that she had made a will devising to him the homestead place on Hall Street in Concord and that Thomas had objected, whereupon it was agreed that she would deed the house to Thomas and that he would have Alexander's name substituted on the bank book for hers. It was undisputed that on December 6, 1929, after this substitution had been made, Nancy conveyed to Thomas the Hall Street property.
Alexander also testified to a conversation he had had with Thomas in regard to the transaction. "He [Thomas] said the same thing mother did on that . . . . He said he had made arrangements . . . and that I could draw money any time I wanted to and have all I wanted of it, if I was ever hard up or anything."
The court was unable to give credence to this testimony and found as a fact "that Thomas made no such statement to Alexander." He further found that the evidence did "not establish any definite undertaking by Thomas that in consideration of a deed to him" he would "pay one half or any part of the amount of the deposit" to Alexander, and ruled that Alexander had established "no right, whether by gift, by equal ownership of a joint fund or by contract, to any part of the deposit in question."
Further findings are quoted in the opinion. Transferred by James, J.
Robert W. Upton and John H. Sanders (Mr. Sanders orally), for Alexander McMullen.
Chretien Craig (Mr. Chretien orally), for Margaret McMullen.
The claimant Alexander's contention that upon the uncontroverted facts he is entitled to a decree awarding the deposit to him is based on the premise that when a deposit stands in the name of two or more persons, there is a presumption of equal ownership which cannot be overcome without affirmative proof. His counsel suggest that the trial court by refusing to adopt this rule (the substance of which is embodied in one of their written requests) gave no weight "to Nancy's record title," that "Alexander, who claimed under Nancy, was required to show that Nancy acquired title under such circumstances as to give her an equal right to the deposit," and that "The presumption of joint ownership resulting from a joint deposit which had been in existence for more than twenty years was rejected and the burden placed upon Alexander not only to show that there was a joint deposit but that the joint depositors were equal owners."
Alexander could not have made out a prima facie case by simply introducing the pass book and bank records. The addition of Nancy's name was perfectly consistent with a purpose on Thomas' part "merely to use her as a convenience in withdrawing money for him" (Commercial Trust Co. v. White, 99 N. J. Eq. 119, 126), and the substitution of Alexander's name for hers with the added words "or survivor" may well have been intended as a testamentary disposition of the fund (Burns v. Nolette, 83 N.H. 489, 492).
Apart from statute, it is the majority rule that a deposit by one in the name of himself or another, or the survivor, is unavailing in and of itself to give the other any ownership or interest in the account. See Annotations, 48 A.L.R. 191, 192; 66 A.L.R. 884. Such is undoubtedly the rule in this jurisdiction. See Fernald v. Fernald, 80 N.H. 75, 76, and cases cited. In Burns v. Nolette, 83 N.H. 489,491, it was conceded that the addition of the defendant's name to the deposit book would not alone be sufficient to transfer to him any title to the funds, and in Dover c. Bank v. Tobin, 86 N.H. 209, where, as here, the conflicting demands were litigated in interpleader proceedings, it was held that one who claims property as a gift inter vivos has the burden of establishing all facts essential to the validity of the alleged gift.
It was not necessary for Margaret in order to acquire ownership of the money on deposit to establish a gift of the account to herself during Thomas' lifetime, for she was the residuary legatee under Thomas' will. In all essential respects, therefore, Alexander is the real plaintiff. The purpose of P.L., c. 261, s. 28, is to protect savings banks and not to determine the rights of depositors and those claiming under them. Dover c. Bank v. Tobin, supra, 211.
Since, as will later appear, the sole inference that could reasonably be drawn from the undisputed facts does not conclusively establish Alexander's case, his motion for a decree was properly denied. Exeter Banking Co. v. Taylor, 85 N.H. 458, 460, and cases cited.
Alexander excepted to various findings on the ground that they were unwarranted by the evidence. One of these findings is as follows: "So far as it appeared in evidence Nancy never made a deposit or withdrawal while the pass book stood in her name; Thomas made frequent deposits and withdrawals during that period." In their brief counsel for Alexander state: "This finding was made before the case was re-opened for the introduction of evidence showing that numerous withdrawals had been made by Nancy. Subsequently, findings were made showing the withdrawals by both Thomas and Nancy while Nancy was a joint depositor . . . . But the findings that Nancy never made a deposit and that Thomas made frequent deposits were allowed to stand. There was no evidence whatever to show who made the numerous deposits." These latter statements are not strictly accurate. The court did not find that Nancy never made a deposit but only that there was no evidence that she did. The fact that Thomas made frequent deposits could be inferred from the testimony of the assistant treasurer of the bank who stated: "Thomas as a rule was the one who did the business. I know he didn't allow Nancy to do very much . . . . I think he is the one that came in [referring to deposits after July 16, 1930], he generally did."
The court found that "During all the periods when his money stood in the so-called joint accounts Thomas kept possession of the pass book and during at least part of this period it was kept under lock and key, the latter being in Thomas' possession." This finding was fully warranted by the evidence. The executor testified that after Thomas' death the pass book was found in "a trunk containing Mr. McMullen's effects," that the trunk was locked and that the key was produced by Thomas' daughter-in-law, who had been caring for him during his last illness. Although Alexander testified that while his father was in Ireland he and his mother kept the book "in a box there in the house," the court was not obliged to accept this statement as true. It is significant that Alexander did not have the book with him when he drew from the bank the money to pay his mother's funeral expenses. The fact that Nancy made numerous withdrawals while her name was on the book did not necessarily indicate that her use of it was more than a permissive arrangement for the convenient management of the household.
Alexander excepted to the following findings or rulings because unwarranted by the evidence, because contrary to the evidence, and because opposed to the law and the evidence: "What ever interest Nancy had in the deposit did not result because she was a purchaser for value of the credit against the bank but because her husband Thomas, without consideration, attempted to give her a claim of some sort in the deposit. Nancy could establish no valid claim of interest in the deposit except by showing that a gift inter vivos had been created by what Thomas did. There being no evidence that the deposit book was delivered to or accepted by her, or that she had control over it, the transaction was no more than an ineffectual tempt to make a testamentary disposition."
In the foregoing paragraph the court considers various interests which Nancy might have had in the deposit and finds that she was neither a purchaser nor a donee. There is of course no evidence of literal purchase and sale of any part of the deposit, and although there was a substantial increase in the fund during the period when Nancy's name was on the pass book, this circumstance did not compel a finding that Nancy contributed financially thereto. Neither the signing of the signature card (an act required by the bank) nor Nancy's possession of the pass book as disclosed by the testimony could evince that "manifest intention of the donor to give" and that "unconditional delivery and acceptance" of the thing given which is essential to the establishment of a valid gift. Dover c. Bank v. Tobin, 86 N.H. 209, 210. A third disposition of the deposit which Thomas could have made was a testamentary one, but the arrangement in question, if designed to be of that character, was void under the statute of wills. Burns v. Nolette, 83 N.H. 489, 492.
Alexander excepted to the supplemental findings made after the case had been re-opened and evidence introduced showing that Nancy had made frequent withdrawals. These findings were as follows: "It did not appear whether these withdrawals by Nancy were for her own use or by the direction of Thomas and for his use; one theory is as consistent as the other, but the fact that Nancy did make these withdrawals over this period of some twenty years does not indicate that this privilege could not be revoked by Thomas at any time before the whole deposit was withdrawn. This evidence does not change the Court's views as to the ownership of this deposit."
It is contended that these findings were erroneous because the court refused "to give effect to the presumption of legal ownership arising from the joint account of Thomas and Nancy." The question of law presented by the exception has been considered in the discussion relating to the motion for a decree. The same is true of the exception to the ruling that there was no presumption of law that when Thomas created the deposit in the names of himself or Nancy they became co-owners of the deposit.
Counsel for Alexander contend that the following findings, to which exception was taken, are wholly inconsistent with the uncontroverted facts: "There is no evidence that Thomas regarded Nancy's consent valid substitution of Alexander's name on the book, any more than when on Jan. 24, 1931 he took off the name of Margaret without apparently having any doubt about his exclusive right to do so. I find, therefore, that between Nancy and Thomas there was no mutual understanding or agreement that Thomas should not exercise any power of removal as to the name of Alexander from the bank book. Instead of there being a contract against such a removal, the evidence is equally consistent with their mere expectation that no such change would occur."
It is not claimed that there is any direct evidence that Thomas believed Nancy's consent essential to the substitution and such belief cannot fairly be inferred from the surrounding circumstances, since the suggestion that Alexander's name be placed on the bank book his mother's came apparently from Nancy herself. The court could properly find that there was no understanding between Nancy and Thomas that Alexander's name should not be removed from the pass book especially in view of the court's expressed inability to give credence to Alexander's testimony as to what his father had told him about the transaction.
Alexander excepted to the exclusion of his testimony concerning the contents of the letter of December, 1929. It is unnecessary to consider the validity of this exception since the presiding justice has asserted that "The declaration if accepted as establishing all that it narrates does not establish any more definite undertaking by Thomas than to put Alexander into Nancy's shoes as respects the deposit" and that he "cannot find from the declaration that Thomas and Nancy understood that Thomas promised to pay to Alexander any part of the deposit, or regarded Alexander as the owner of any part." The executor of Thomas' will was not joined as a defendant until after the first hearing. He testified, however, at that hearing, and was then asked: ". . . did Mr. Thomas McMullen at the time that you made his will tell you that he had made an assignment of his bank account to his wife and that that had been done for the purpose of taking care of her?" The answer was excluded, subject to Margaret's exception.
The presiding justice found on the evidence submitted at the first hearing that the executor by delivering the bank book to Margaret and failing to make claim to the deposit apparently intended to renounce any claim thereto and that consequently no decision as to whether Margaret had established a gift inter vivos was required. He ruled that if the executor after being notified of this conclusion failed "to raise the above question by becoming a party hereto" he would be held to have renounced all claims and that Margaret would be entitled to the entire deposit.
After the findings were filed, the bank moved that the executor be made a party defendant. This motion was granted. The executor then filed an answer, the material paragraphs of which follow.
"On December 2, 1931, I was called to the home of Thomas McMullen who asked me to make his will. The only statement he made with reference to the bank book which is the subject of controversy in this case was, in effect, as follows:
"`I have transferred to my wife money in the savings bank which will take care of her after my death.'
"After the death of Mr. McMullen, I found the bank book in controversy in his trunk, and later delivered the same to Margaret McMullen, the widow.
"Upon these facts the executor submits to the Court the question as to whether or not he should be made a party defendant in the above action."
On this question the court found: "At the hearing of Feb. 1, 1935, when the newly discovered evidence was offered, the Executor waived any rights he might have to object to evidence already offered or to introduce new evidence with the exception of a statement made to him by Thomas when he made the latter's will. This evidence was taken by deposition on March 21, 1935. In this deposition the Executor testified, and I find it as a fact, that at the time he made Thomas' will he was told by Thomas in effect as follows: `I have money in the savings bank which I have transferred to my wife and that will take care of her pretty substantially.' To the introduction of this evidence Alexander objected and is given an exception . . . .
"I rule that there was no valid gift inter vivos to Margaret but that the Executor has renounced all claims to the deposit."
It may be conceded that the evidence excepted to by Alexander was not admissible against him as a declaration bearing on Thomas' intention to make a gift of the bank account to Margaret. Scott v. Bank, 140 Mass. 157, 166; Veader v. Veader, 89 N. J. Law, 399. But the evidence was not used against Alexander. The court had already found against him with the evidence in question excluded. The executor testified that he delivered the bank book to Margaret because he believed that by so doing he was carrying out the testator's wish. The evidence was considered merely on the question submitted to the court by the executor's answer. Alexander could not have been harmed by its admission.
Exceptions not referred to in the briefs are understood to be waived.
Exceptions overruled.
All concurred.