Bendix v. Hudson County Nat. Bank.

• Decision Date: 13 May 1948
• Docket Number: No. 223.,223.
• Citation: 59 A.2d 253
• Parties: BENDIX v. HUDSON COUNTY NAT. BANK.
• Court: New Jersey Supreme Court

59 A.2d 253

BENDIX

v.HUDSON COUNTY NAT. BANK.

No. 223.

Court of Errors and Appeals of New Jersey.

May 13, 1948.

Appeal from Court of Chancery.

Action by Dorothy Bendix against the Hudson County National Bank to recover a savings account opened by a third person in the defendant bank in his own name in trust for the complainant. From a decree for the complainant, the defendant appeals.

Decree reversed and cause remanded for further proceedings.

BODINE and WACHENFELD, Justices, and DILL and SCHETTINO, Judges, dissenting.

Milton, McNulty & Augelli, of Jersey City (Anthony T. Augelli of Jersey City, of counsel), for appellant.

Vickers & Castelli, of Jersey City (Felice Castelli, of Jersey City, of counsel), for respondent.

HEHER, Justice.

The subject of controversy here is the title to a savings account opened by one John Wilson with the defendant bank on December 4, 1944, in his own name ‘in trust for Dorothy Bendix,’ the complainant. The initial deposit was $1600, which complainant insists was her own money. At the same time, complainant opened a savings account in her name ‘in trust for John Wilson,’ with a like deposit of $1600. She testified that all the moneys thus deposited, $3200, were her savings from ‘salary’ earned in the pursuit of her employment, and that she ‘carried’ the entire sum on her ‘own person,’ although she later qualified this somewhat. Complainant and Wilson were together when the accounts were opened; and they told the bank clerk that they ‘wanted to open a joint account;’ and, when they were informed that if the account was joint, withdrawals could be made on the signature of either or both, ‘they decided they each wanted an account, one in each name.’

Wilson died on January 3, 1947, leaving a balance in the former account of $1022.36, the sum involved in the litigation. There were several deposits in this account during Wilson's lifetime, all of which complainant testified she made from her own accumulated savings. And, with one exception, the withdrawals, she also said, were actually made by her on vouchers signed by Wilson but prepared by her. Deposits were also made in her own account ‘as trustee’ identical in date and amount with those made in Wilson's account; and these, she said, were all her own ‘savings.’ And the withdrawals from her account were all made by her. The withdrawals from these two accounts were also identical in amount and date, save the last which closed her account, $1026.97, made by complainant one week after Wilson's death. Complainant and Wilson lived together though not married to each other; and on occasion they represented themselves as husband and wife. Complainant testified that Wilson turned over to her his weekly earnings of $48, and that she provided him which ‘expense’ money and used the balance for ‘household expenses' and ‘saved’ her own earnings. There was no evidence of the existence of a trust, or of the giving of notice to the bank of the existence and terms of a legal and valid trust, save in the form of the bank accounts.

The estate of the deceased Wilson was not made a party to the suit; there is no evidence of a will or of the issuance of letters of administration upon his estate.

The learned Vice Chancellor, in unreported conclusions, found that Wilson opened the account in question ‘with presumed knowledge’ of R.S. 17:9-4, N.J.S.A., ‘and thus created a trust in himself as trustee for the benefit of complainant, over which he reserved a power of revocation during his lifetime, and since he never exercised such power the balance standing to the credit of said account at his death, by virtue of said statute, belongs to complainant free, according to the express terms of the statute, from any claim by Wilson's legal representative, even if the funds deposited in the account may have been the property of Wilson; therefore such representative, if any there be, is not a necessary party to this suit.’

Thus, the Vice Chancellor did not determine whether the moneys in the account were in fact complainant's property, so deposited merely for convenience or for some other purpose entirely consistent with the retention of title in her, or the existence in point of fact of all the elements of a valid gift inter vivos or a valid and enforceable declaration of trust, if Wilson himself was the source of the fund; he read the statute cited supra as giving rise, even in the latter event, to a conclusive presumption of an intention to make a gift in praesenti of the bank credit to the putative cestui, followed by the acts essential to the effectuation of the intention; and therein he fell into error.

The case is ruled by the principle of Rush v. Rush, 138 N.J.Eq. 611, 49 A.2d 238, and Stiles v. Newschwander, 140 N.J.Eq. 591, 54 A.2d 767. Neither the form nor the content of the account is, in itself, conclusive of the issue of title and ownership. Such an interest (if any) as the putative cestui has in the fund derives from the intention of the parties. Both a gift inter vivos and a trust operative inter vivos are grounded in the intention of the donor or settlor. A donative purpose or a manifested intention to create a trust is requisite. A valid gift inter vivos, has no reference to the future, and goes into immediate and absolute effect. The essentials of a gift inter vivos are, first, a donative intent; second, an actual delivery of the subject matter of the gift, unless it be a chose in action, in which case the delivery must be of that variety of which it is most capable; and third, the donor must strip himself of all ownership and dominion over the...