Barker v. Frye

• Decision Date: 16 February 1883
• Citation: 75 Me. 29
• Parties: EDWARD BARKER, in equity, v. WILLIAM A. FRYE.
• Court: Maine Supreme Court

75 Me. 29

EDWARD BARKER, in equity, v. WILLIAM A. FRYE.

Supreme Judicial Court of Maine.

February 16, 1883

BILL IN EQUITY.

Heard on bill, answer and proof.

The opinion states the material facts.

A W. Paine, for the plaintiff, cited: Northrop v Hale, 72 Me. 275; Gerrish v. N. B. Ins. for Savings, 128 Mass. 159; Blasdel v. Locke, 52 N.H. 238; Howard v. Windham Bank, 40 Vt. 597; Gardner v. Merritt, 32 Md. 78; Minor v Rogers, 40 Conn. 512; Ray v. Simmons, 11 R. I. 266; Brabrook v. Bost. Five Cents Sav. Bank, 104 Mass. 228; Clark v. Clark, 108 Mass. 522; Davis v. Ney, 125 Mass. 590; Pierce v. Boston Sav. Bank, 129 Mass. 425; Robinson v. Ring, 72 Me. 140; Hill v. Stevenson, 63 Me. 364; Welsch v. Belleville Sav. Bank, 94 Ill. 191; Millspagh v. Putnam, 16 Abb. Pr. 380; Martin v. Funk, 75 N.Y. 134; Milroy v. Lord, 4 De Gex F. and J. 264; Stone v. Bishop, 4 Cliff. 593; Stone v. Hackett, 12 Gray 227; Gould v. Emerson, 99 Mass. 154; Knickerbocker L. Ins. Co. v. Weitz, 99 Mass. 157; Wall v. Prov. Inst. 3 Allen 96; Taylor v. Henry, 48 Md. 550.

Drummond and Drummond, for the defendant.

That no legal or equitable title passed to the complainant prior to the change in the books, is conclusively settled bye Northrop v. Hale, 73 Me. 66.

After the change in the deposit, the title would vest in the complainant on delivery of the pass book. Mrs. Frye knew a delivery of the book was necessary to complete the gift. Mr. Barker so understood it and wrote her to send him the books, yet she did not, but retained the control herself.

The cases cited by counsel for complainant were cited to the court in Northrop v. Hale, supra, but the court there followed the decisions which conflicted with these.

" There must be an intention to give and this must be carried into effect by an actual delivery." Robinson v. Ring, 72 Me. 140.

As nothing less than what the law deems " an actual delivery" will make an intended gift an actual gift, it matters not how far in the direction of carrying out the intention the parties may go if they fall short of " actual delivery." We find no case in which it has been held that any declaration of intentions, whether to the intended donee or vendee or to third persons, is equivalent to " actual delivery."

In Davis v. Ney, 125 Mass. 590, and Pierce v. Savings Bank, 129 Mass. 425, there was an actual delivery; and Gerrish v. Savings Bank, 128 Mass. 159, was decided by force of a statute which does not exist in Maine.

The cases cited from New Hampshire, Vermont, Rhode Island, Connecticut, New York, & c. are in conflict with the decisions in Massachusetts and Maine.

DANFORTH J.

The plaintiff seeks to recover possession of a book issued by the Augusta Savings Bank, showing a deposit of money in that bank in his favor. Both parties claim the deposit and the question involved is upon the validity of the plaintiff's title.

It appears from the evidence in the case, and the facts are undisputed, that in May, 1870, Lydia P. Frye, the grandmother of the plaintiff, made four distinct but equal deposits, taking a book for each with the same heading, except the name. That now in question reads as follows, viz; " Augusta Savings Bank in account with Edward Barker, subject to the order of Lydia P. Frye, during her lifetime."

Then follows the deposit. Subsequently she made other deposits, which with the accumulated interest, were duly entered upon the book. Each book had upon it the same amount. The dividend for August 1, 1872, was withdrawn. It also appears that at the time of making the first deposit, Mrs. Frye said to the treasurer of the bank in substance that she desired to make a deposit for each of her grandchildren, of whom she named the plaintiff as one, to which she proposed to make additions from time to time and expressed the hope that with the accumulated interest, the deposits might amount to enough to be of advantage to them, when they should reach a suitable age to take charge of the money themselves. She said she wanted " to do something for the children."

She subsequently informed this complainant of what she had done and that the money was intended for him and the other children.

Under the decision of Northrop v. Hale, 72 Me. 275, holding that evidence, aside from the bank book, is admissible to vary the effect of the entries and show the intention of the depositor, it is difficult to perceive how that intention could be more clearly shown, or how a trust in favor of the children could be more certainly declared than is shown by this evidence. The facts thus proved very decidedly distinguish this case from that of Northrop v. Hale, 73 Me. 66, and cases relied upon by the defence, and bring it within the principles there laid down as necessary to constitute a valid trust, even to the notice to and the acceptance by the cestui que trust. Gerrish v. Ins. for Savings, 128 Mass. 159, after an elaborate review of the authorities, sustains this view.

Subsequently, however, it seems that in the opinion of Mrs. Frye the time anticipated by her when the children " should reach a suitable age to take charge of the money themselves," did arrive, and she divested herself of her trusteeship as well as of all interest in, or control over the money and invested them with the absolute title to and control over it.

On September 19, 1881, Mrs. Frye appeared at the bank with the several books and informed the treasurer " that the time had come when she desired to make such a change in the terms of the deposits made for her grandchildren. . as would give them full control over them, and the amounts on each book become the absolute property of the parties named therein, and her right to control them should cease. Her expressed wish was, that her claim over the amount of the deposits should be withdrawn as to each case, and the books so changed that they would stand in the names of her grandchildren without any restriction whatever."

The treasurer, then and there at her request, erased from the books the original entry " subject to the order of Lydia P. Frye," and erased the same entry from the books of the bank. Of this change the plaintiff was immediately notified by letter with the additional information that the books would be delivered the first time they met. The plaintiff replied with the request that the books might be sent to him, which was an acceptance of the gift.

So far as necessary to make a valid gift of the money and divest Mrs. Frye of any interest in it as trustee or otherwise, everything was done and completed. No condition remained attached to the deposit; nothing to be done in the future. The intention that the gift was then to take effect cannot be disputed. Under the by-law of the bank, in view of which Mrs. Frye's act must be construed, by which all deposits are entered upon the books of the bank and a book given to each depositor in which every deposit made by him will be entered, which will be his voucher and the evidence of his property in the institution, the person whose name appears unconditionally upon the books, must, by the bank, be considered the depositor, and alone, in person or by order, be authorized to withdraw the deposit. After this change Mrs. Frye could not and the plaintiff could withdraw the money credited to him upon the books. Applying the strictest rules laid down in the decided cases, as necessary to constitute a valid gift and this would stand the test. Hill v. Stevenson, 63 Me. 364; Dole v. Lincoln, 31 Me. 422; Urann v. Coates, 109 Mass. 581; Pierce v. Savings Bank, 129 Mass. 425; Grangiac v. Arden, 10 Johns. *293; Wing v. Merchant, 57 Me. 383; Trowbridge v. Holden, 58 Me. 117; Stone v. Bishop, 4 Cliff. 593.

But much stress is laid upon the fact that the deposit book was not delivered to the plaintiff. This was not necessary. A delivery of the property given, actual or constructive, is undoubtedly necessary to a valid gift, as evidence that the donor has parted with all control of and interest in the property. But the...