Collins v. Collins' Adm'r

Citation45 S.W.2d 811,242 Ky. 5
Decision Date01 December 1931
CourtCourt of Appeals of Kentucky

Rehearing Denied Feb. 23, 1932.

Appeal from Circuit Court, Henderson County.

Action by J. U. Collins' administrator and others, against James Verbal Collins, guardian, and others. Judgment for plaintiffs, and defendants appeal.

Reversed for judgment in accordance with opinion.

Henson & Taylor, of Henderson, for appellants.

Pentecost & Dorsey and Vance & Heilbronner, all of Henderson, for appellees.


The crucial question in this case is whether a gift is accomplished by the deposit of money in a savings account in the name of infants, when accompanied by proof of subsequent statements of the depositor indicating an intention to pass title to the money, even though the depositor made withdrawals from the account for his own purposes.

James Urey Collins was married twice, had three children, and died intestate. James Verbal Collins and Clara Louise Collins were children of his first wife, who had died on June 14, 1922. Laverne Collins is the child of the second wife, Ruth Collins, who is the widow of James Urey Collins. In this action to settle the estate, the Henderson National Bank, as administrator of the estate of James Urey Collins and as guardian of Laverne Collins, together with the widow, Ruth Collins, were the plaintiffs, and the Farmers' Bank &amp Trust Company, guardian of James Verbal Collins and of Clara Louise Collins, and other necessary and proper parties, were the defendants. A controversy arose over the ownership of certain funds deposited in various banks in the names of James Verbal Collins and Clara Louise Collins and also over a certain lot and brick storehouse, title to which was in the name of the deceased, James Urey Collins but which was purchased with a check on the savings account standing in the name of J. V. and C. L. Collins. The widow and her infant child claimed that the deposits and the storehouse lot belonged to the estate of Collins, whilst the two children of the first wife asserted ownership in themselves. The circuit court decided that all the property in controversy belonged to the estate of James Urey Collins, and an appeal has been prosecuted on behalf of the two older children.

James Urey Collins had a savings account in his own name at the Henderson National Bank prior to October 10, 1925. On that day he changed the deposit to the names of C. L. and J. V. Collins. Thereafter, James Urey Collins added to the account and made withdrawals therefrom. The withdrawals were made by checks signed "C. L. and J. V. Collins." In every instance the signature on the check was written by James Urey Collins, and in some instances he put thereon the words "By J. U. Collins," immediately following the signature. Printed under the signature on the checks were the words "owner of the pass book." The balance in the account when Collins died was $2,843.42. Collins once had a checking account in his own name at the Henderson National Bank. It began on July 22, 1919, with a deposit of $100, and was exhausted by a check for $11.25 paid on April 25, 1928. Deposits were made occasionally and checks were drawn on that account from time to time. The balance increased until it reached $2,200, and then gradually diminished until it was exhausted.

Collins opened a savings account at the Ohio Valley Savings & Trust Company in the name of C. L. and J. V. Collins on June 24, 1920, and accumulated $3,200 therein, which was withdrawn by Collins on June 20, 1927. A savings account was then opened at the Farmers' Bank & Trust Company in the names of "C. L. or J. V. Collins by J. U. Collins." That account began with a deposit of $3,200 on June 20, 1927, and was gradually reduced by withdrawals to $1,232.77, which was the balance shown by the savings account book on October 2, 1927. The savings account books were kept by Collins in a tin box at his home. On October 3, 1927, Collins drew a check on the savings account in the Henderson National Bank for $6,750 which was payable to the order of Geo. W. Stone, and was marked "payment in full for property on Elm Street." The deed, however, recited that a lien of $5,000 upon the property was assumed by the purchaser. The check was signed by Collins in the names of "C. L. or J. V. Collins"; his own name not appearing. The deed from Stone and wife conveyed the title to J. U. Collins.

Clara Louise Collins testified that her mother died June 14, 1922, and that her father remarried in 1927; that her father had been engaged for many years in the restaurant business and that her mother, during her life, worked in the business with him. The witness was known as C. L., and her brother was known as J. V., Collins. She was 17 years old, and her brother was two years older. She was familiar with the pass books and had carried them to the banks for the purpose of making deposits with money furnished by her father. She knew that the deposits were being made in the names of herself and brother, and consented thereto. When she returned from the bank with a pass book she returned it to her father, who took care of it. Her father kept the savings account books in a tin box at home.

James Verbal Collins testified that his mother worked in the restaurant with his father, that he knew of the pass books, and of the deposits, and that it was satisfactory and agreeable to him.

W. P. Bond testified that he sold a truck to James Urey Collins in 1925 which was paid for by a check signed by C. L. and J. V. Collins, drawn on the Henderson National Bank. Collins stated to him that he did not know whether he had sufficient funds in the little Henderson County Savings Bank to pay for the truck, and, if not, he would have to get a check on the Henderson National Bank which his children would have to sign because it was theirs.

Mrs. Anderson, a sister of the first Mrs. Collins, testified that Mrs. Collins assisted her husband up to the time of her death in the operation of the restaurant. She testified further that J. U. Collins had told her about putting the money in the savings accounts in the names of his two older children, and that he was going to fix it for them; that everything he had in money he had deposited in the names of Louise and Verbal, and that their mother had helped to make it, and he intended for them to have it. He also stated that the business was so tangled up that he could not sell it. The various statements were made by Collins a few months before his death.

Mrs. McCormick, maternal grandmother of the appellants, testified that the two children had lived with their father and mother until the mother's death, and continued thereafter to live with their father until his death. She heard the statements testified to by Mrs. Anderson, and heard Mr. Collins say that what he had was cash and was for his children; that he wanted them to have it, and did not want any one else to have it, because their mother had helped to make it. The witness said Collins referred to the money he had in the bank, which was for the children, and he wanted them to have it.

C. V. Hawkins testified that he had seen Mr. Collins twice during 1929, and on both occasions they discussed business affairs. Collins stated that he had his money in the bank for the children and meant for them to have it, and exhibited a pass book. In the two conversations, he stated that when he bought certain property he took money out of the bank that belonged to the children, had the deed made to himself, and therefore he could not sell it.

Neither C. L. nor J. V. Collins signed any check, or knew that any check had been drawn, and, of course, did not consent to the withdrawals.

The defendants produced the testimony of the officers of the bank to the effect that the deposits were made by James Urey Collins, that the checks were drawn by him, and that they knew no one else in connection with the accounts. The clerks at the various banks did not corroborate Clara Louise Collins that she had made deposits, but stated that what was done by the bank in keeping the accounts and handling the money was done at the direction of the deceased. No such notations were placed on the pass books. The clerk at the Farmers' Bank & Trust Company had a notation on the margin of the loose leaf account book kept at the bank, to the effect that the checks were to be signed only by James Urey Collins. Collins himself made all the deposits and withdrawals. Other witnesses testified that they were close friends of James Urey Collins, were with him a great deal, and that he did not mention his accounts, or indicate to them what he had done, or what he desired in respect thereof. One of the witnesses testified that an investigation disclosed that the deceased had no checking account in any bank in Henderson. Doubtless he referred to the time subsequent to April 25, 1928, when the checking account at the Henderson National Bank was exhausted. The widow had the key to the tin box in which the savings account books were kept, and it was turned over to the administrator. No canceled checks were found in the box. Apparently they were at the banks, since they are all in the record.

It will be observed that some of the deposits were made after the second marriage, but most of the money was accumulated before the second marriage. About $9,534 had been saved before the second marriage, which was subsequently increased to about $12,943, and then, by withdrawals, reduced to about $2,853.43. These withdrawals included the $6,750 paid to Stone for the Elm street real estate.

A gift of personal property is completed by a delivery thereof either actual or symbolical, with an intention that the title thereto shall pass and...

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