Androscoggin County Sav. Bank v. Tracy

• Decision Date: 27 November 1916
• Citation: 115 Me. 433,99 A. 257
• Parties: ANDROSCOGGIN COUNTY SAV. BANK v. TRACY et al. PEOPLE'S SAV. BANK v. SAME.
• Court: Maine Supreme Court

99 A. 257

115 Me. 433

ANDROSCOGGIN COUNTY SAV. BANK

v. TRACY et al.

PEOPLE'S SAV. BANK

v. SAME.

Supreme Judicial Court of Maine.

Nov. 27, 1916.

Appeal from Supreme Judicial Court, Androscoggin County, in Equity.

Suits by the Androscoggin County Savings Bank and by the People's Savings Bank against James Tracy and others. Prom the decrees, the defendant James Tracy appeals. Decrees modified and affirmed, with direction that a new decree be made in accordance with the opinion.

Argued before CORNISH, KING, BIRD, HALEY, PHILBROOK, and MADIGAN, JJ.

Newell & Woodside, of Lewiston, for appellant. James Tracy. White & Carter, of Lewiston, for appellee Androscoggin County Sav. Bank. McGillicuddy & Morey, of Lewiston, for appellee Catharine V. Tracy. Belleau & Belleau, of Lewiston, for appellee People's Sav. Bank.

KING, J. These two cases are bills of interpleader, in each of which the plaintiff bank prays that the defendants be decreed to interplead touching their respective claims to certain deposit accounts in its bank. The causes were heard together by the sitting justice upon bills, answers, and proof, the answers being taken as the pleadings of the respective claimants; and decrees were made upon the merits. Prom those decrees the defendant James Tracy appealed.

In the bill of complaint wherein the Androscoggin County Savings Bank is plaintiff it is alleged, in substance, that at the time of the death of one Mary A. Tracy, February 1, 1911, she had on deposit in said bank in her name $392.87, represented by deposit book No. 13207; that there was also on deposit in said bank at the time of her death $2,385.34 for which said bank had issued a deposit book No. 33050 in the name of James Tracy, guardian of Mary A. Tracy; that Mary A. Tracy died testate, and said James Tracy was duly appointed and qualified as the executor of her will; that subsequent to the death of the testatrix there was withdrawn from said deposit book 33050 by James Tracy or upon his order the sum of $389.40; that said deposit books are in the possession of the defendant Catharine V. Tracy, who claims title to the whole of the deposits represented thereby as guardian of her daughters, Bridget Ellen Tracy and Catharine Tracy; that said James Tracy also claims the whole of said deposits as executor of the will of Mary A. Tracy; that the total amount of the two deposits with accrued dividends to the date of the bill is $2,699.55.

The allegations of the bill in the other case are the same, except as to name of the plaintiff and the amounts of the deposits and the numbers of the books. There was at the death of Mary A. Tracy a deposit in that bank of $483.90, represented by book No. 21284, issued in her name, and also another deposit of $821.83, represented by book No. 29668, in the name of James Tracy, guardian of Mary A. Tracy. Subsequent to her death the amount of $32.84 was withdrawn from deposit account No. 29668. Catharine V. Tracy has possession of those deposit books, and she claims the whole of the deposits as guardian of her said daughters. James Tracy likewise claims the whole of the deposits as the executor of the will of Mary A. Tracy. The total amount standing to the credit of both of the books in the People's Savings Bank, with accrued dividends to date of bill, is $1,492.33.

The sitting justice filed with his decrees an extended statement of facts as found by him, from which we summarize as follows:

Title to only two of the deposits is really in question, namely, No. 29668 in the People's Savings Bank, and No. 33050 in the Androscoggin County Savings Bank.

Prior to August, 1894, John Tracy was the owner of a block on Main street in Lewiston, upon which there was a mortgage of $2,500. He had a sister, Mary A. Tracy, who was becoming old and infirm, and for whose comfort and support he wished to make some substantial and permanent provision. Accordingly August 23, 1894, he executed, without consideration, and delivery to Mary a warranty deed of the block. At that time John was married to the defendant Catharine V. Tracy, but they then had no children. Mary had use and income of the block from the time it was so conveyed to her until it was sold by her guardian as hereinafter mentioned. It is claimed by the defendant Catharine V. Tracy that the conveyance of the block by her husband, John, to his sister, Mary, was made upon the express condition, agreed to by Mary, that she would make a will devising the block to him, if living at her death; otherwise to his children, if he left any. And soon after the conveyance to Mary she did execute a will in John's favor. John died in 1904, leaving his widow, Catharine V., and their two minor children, for whom the mother, Catharine V., was appointed guardian. Very soon after John's death his sister, Mary, destroyed her will in his favor, and made another in which she devised the block to John's two daughters, with the proviso that, if the devisees were not of lawful age at the time of the death of the testatrix. "I hereby appoint by brother, James Tracy, trustee of said real estate to collect the rents and income and hold the same until the said children shall have reached their legal majority." James Tracy was the sole residuary legatee under that will, and was named as the executor thereof.

In August, 1907, James Tracy was appointed guardian of Mary A. Tracy. Soon after his appointment he presented to the probate court a petition for license to sell the block, alleging therein that such sale was necessary to raise funds for the proper support of Mary. The license was obtained and the property was sold thereunder in January, 1908, by the guardian, James, for $6,000. The proceeds of the sale less the mortgage debt was deposited in the two plaintiff banks in the name of James Tracy, guardian of Mary A. Tracy, and the two deposits here in controversy, namely, No. 29668 in the People's Savings Bank and No. 33050 in the Androscoggin County Savings Bank, represent what is left of the proceeds of the sale of said block and nothing more.

Mary A. Tracy died in 1911, and her second will, above mentioned, has been probated, and James Tracy has been appointed and qualified as the executor thereof. As such executor he claims to be entitled to the deposits in question. On the other hand, Catharine V. Tracy, as the guardian of the two minor children of John Tracy, claims these deposits which represent the balance of the proceeds of the sale of the block.

In his statement of facts the...