Augusta Sav. Bank v. Fogg

• Decision Date: 27 May 1890
• Citation: 20 A. 92,82 Me. 538
• Parties: AUGUSTA SAV. BANK v. FOGG et al.
• Court: Maine Supreme Court

20 A. 92

82 Me. 538

AUGUSTA SAV. BANK

v. FOGG et al.

Supreme Judicial Court of Maine.

May 27, 1890.

(Official.)

Report from supreme judicial court, Kennebec county.

Heath & Tuell, for John B. Fogg. Baker, Baker & Cornish, for Dorothy J. Dearborn.

HASKELL, J. Bill of interpleader sent up on report to determine the title to a deposit in the Augusta Savings Bank.

It appears that one Hodgkins, now dead, in his life-time made the deposit in account with Dorothy J. Dearborn, the claimant, or Amos C. Hodgkins, himself; that the deposit was made with the intention that at his death it should become the property of the claimant; that the book was not delivered to her until after his decease; that until his death it remained in a trunk in Mrs. Paul's house, where he lived and died, and then was taken by his executor, and delivered to the claimant, pursuant to the testator's direction; that a few days before his death, conscious that his end was near, he called the executor, delivered to him a tin trunk, with directions as to the contents, and the key to the trunk, in which the bank-book was kept, with directions to give it to his sister after his decease; that his sister, the claimant, did not know of the intended gift to her during his life-time, nor did the executor, when he received the key to the trunk that contained the book, know that the book was in it. He did not ascertain that fact until after the testator's death.

The learned counselors for the claimant set up her claim, "not by reason of any trust, nor of a donatio causa mortis, but of a valid gift inter vivos."

The evidence shows an intention to give, but not during life. The gift would have been complete upon the delivery of the bank-book. The testator retained the possession of it, beyond all question, until a few days before he died. He then delivered the key of a trunk containing the book, not to the claimant, nor to any person to be forthwith delivered to her, but to the executor named in his will, for her, "at his decease." Had he recovered, would the title of the deposit have gone from him? Wan the gift complete in his life-time?

By giving the evidence the most favorable consideration of which it is susceptible in the claimant's favor, she was only entitled to receive the bank-book upon the contingency of the supposed donor's decease. The end of his life was made a condition precedent to a complete transfer of the deposit to the supposed donee. Even if the substituted delivery of...