Brewer v. Bowersox

• Decision Date: 08 February 1901
• Parties: BREWER v. BOWERSOX.
• Court: Maryland Court of Appeals

48 A. 1060

92 Md. 567

BREWER v. BOWERSOX.

Court of Appeals of Maryland

February 8, 1901

Appeal from circuit court, Frederick county, in equity; James McSherry and John C. Motter, Judges.

Action by Emily J. Bowersox against N.L. Brewer, as administrator with the will annexed of Jacob Bowersox, deceased. From a decree in favor of plaintiff, defendant appeals. Affirmed.

Pearce and Jones, JJ., dissenting. The following is the opinion of the trial court:

"There are several interesting questions presented by the record now before us. That they may be clearly understood, a brief statement of the facts out of which they grew must first be made. The real contest is between the widow of Jacob Bowersox and the administrator cum testamento annexo of his estate; and the subject-matter of the controversy is an interest-bearing deposit in the Fredericktown Savings Institution, to which each lays claim. Some years ago Jacob Bowersox married his second wife, who is the plaintiff in this case. At the time of his death, which occurred in this county during the year 1899, he was considerably over eighty years of age, and for a while before his decease he had been in feeble and declining health. He left surviving him a widow, now about seventy-one years old, and some adult children by a former marriage. He had resided in the state of Ohio, but something over a year prior to his death he and his wife came to Frederick, where they remained until he died. Whilst he lived in the West he deposited in the City National Bank of Kalamazoo, to his own credit, a sum of twenty-eight hundred dollars. He received from the bank six certificates of deposit. Five of these were for five hundred dollars each, and one was for three hundred dollars. They were all payable to himself. Two of them he parted with by indorsement. Thereafter he and his wife, the plaintiff, called at the bank in Kalamazoo and he gave specific directions to have the remaining deposit certificates changed in such a way as to enable either himself or his wife to draw the money. This change was thereupon made, in accordance with his request, so that either could draw the fund without the presence or the indorsement of the other. The outstanding and uncashed certificates were taken up by the bank, and the fund was redeposited to the credit of husband and wife, subject to the order of either; and the new certificate, in that form was delivered to him. Without pausing to consider whether her testimony, to the effect that her husband then and there gave or handed to her the new certificate, is admissible, we next find, through clearly competent testimony, that the new certificate was actually in the plaintiff's possession, here in Frederick, during the lifetime of her husband. It is not disputed, but, on the contrary, has been distinctly proved, by the defendants that the plaintiff brought the Kalamazoo bank certificate which was payable as just stated, to the order of either her husband or herself, to the Fredericktown Savings Institution, with a request that it be collected. She alone indorsed it, and she alone delivered it to the savings institution, which gave her a deposit slip in exchange. Later on, the money having been collected by the savings institution from the Kalamazoo bank, she caused the fund to be entered as a special interest-bearing deposit, after, as Mr. Markell states, she had taken time to consider what disposition she would make of it; and the savings institution issued and delivered to her a certificate which, as much of the controversy turns upon its language, will now be transcribed. It is in these words: 'The Fredericktown Savings Institution of Frederick has this day received of Jacob or Emily J. Bowersox nineteen hundred and eighty-one 72/100 dollars, which sum, with the interest thereon at three per cent. per annum, will be paid to them, or their order, at sixty days' notice, after the expiration of six months from date. M.E. Doll, President. J. Marshall Miller, Secretary.' It is dated July 15, 1898. There is not a particle of evidence to show that this paper ever left the possession of the plaintiff from the day she received it at the savings institution until she delivered it over to the probate judge in Tiffin, Ohio, after the death and burial of her husband.

"Laying out of view for the moment the fact that the plaintiff did indorse the certificate now in controversy (because the fact and its legal effect will be discussed and determined later on), what were her rights, if any, under the savings institution's certificate of July 15, 1898? Prior to its issue had she any right to control or dispose of the fund to their joint credit in the Kalamazoo bank; and did she acquire any right to that fund after its collection by the savings institution, if she had none before; or, if she did have a right to it before, did she retain that right under the savings institution's certificate? These are the questions which lie at the threshold of the case.

"Now, it will be observed that the form and phraseology of the certificate issued by the savings institution differs widely from any of the deposit entries or certificates that have ever been passed on by the court of appeals in the numerous cases decided by that tribunal on contentions over savings-bank and other deposits. In the recent cases of Whalen v. Milholland, 89 Md. 199, 43 A. 45, 44 L.R.A. 208, and Baker v. Hedrich, 85 Md. 645, 37 A. 363, many of the antecedent decisions were examined; and it will be found, upon a reference to them, that the principle which underlies them all has no application to the pending controversy. It may be stated, as the result of all those cases, that where money belonging to one person, and known to belong to him, is deposited by him in his own name and in the name of another, but subject to the order of either, and the depositor retains possession, control, and dominion over the pass book or certificate, without the production of which the fund cannot be drawn, he does not part with the ownership of the fund, and the other person becomes merely an agent of the real owner, acquiring no interest in the fund at all, and ceasing upon the death of the owner to have any authority whatever as agent. And the reason for this is apparent. The owner of the money can by his own act voluntarily part with his ownership of it only by gift, payment, or bequest. Such a deposit as has just been named is obviously neither a bequest nor a payment, for it possesses none of the characteristics of either; and it cannot be a gift to the other person mentioned in the bank book or the certificate, because, if the depositor retains the book or the certificate, he retains complete dominion over the fund. There can be no perfected gift where the supposed donor reserves a locus penitentiæae, and a locus penitentiæae is always reserved when the alleged donor may at any moment withdraw the fund from bank. In none of the cases heretofore decided did the form of the deposit change the original ownership of the fund; but the form of this deposit is, as already observed, essentially different from that dealt with in the other cases. A delivery of the bank book or of the certificate of deposit with an intent to pass the ownership of the fund will perfect the gift, and clothe the donee with an indefeasible right to the money on deposit. Whalen v. Milholland, supra.

"We have on the face of the certificate here involved a condition materially and radically different from that presented in any of the prior Maryland cases. The paper in question is not a certificate evidencing a deposit in the joint names of two persons, payable to the order of either, nor is it in the name of one payable to himself or another, as in Wrightson's Case, 63 Md. 81; but it is a certificate wherein the depositors are disjunctively named, but the money is expressly made payable only to the two, or to the order of the two. And these two persons are, in fact, husband and wife. This certificate is a close in action, and it is a chose in action payable to husband and wife. Clearly, neither of them could have drawn the money during the life of both without the consent of the other, because an indorsement by one would have been insufficient to transfer the certificate and a surrender of it by one would have been ineffectual to constitute an extinguishment. The specific terms of the contract of deposit embodied in the certificate made the fund the joint property of husband and wife, because those very terms put it out of the power of the husband to repossess himself of the fund during the life of the wife, except with her consent and cooperation. What, then, is the legal consequence of such a contract? There was no relation of agency established by it. That is obvious. There was no locus penitentiæ reserved by it, because a separate dominion by either was completely superseded by a joint control. There was no act which either the husband or the wife could do that would prescind the right of the other. In a word, a tenancy by the entireties was created, and, of course, regard being had to the face of the paper alone, the legal consequences dependent on and flowing from that status must necessarily ensue. Now, a tenancy by the entireties may be created in personalty. Ward v. Ward, 14 Ch.Div. 506; In re Bryan, 14 Ch.Div. 516; Gordon v. Whieldon, 11 Beav. 170; Freem. Co-Ten. §§ 66, 68; Gillan's Ex'rs v. Dixon, 65 Pa. 395; In re Bramberry's Estate, 156 Pa. 628. 27 A. 407. The creation of a tenancy by the entireties does not depend on the words employed in making a conveyance or a gift to husband and wife. The common-law rule is that the words which in a conveyance to unmarried persons constitute a joint tenancy will create, if the grantees are husband and...