Dougherty v. Moore

• Decision Date: 12 June 1889
• Citation: 18 A. 35,71 Md. 248
• Parties: DOUGHERTY ET AL. v. MOORE ET AL.
• Court: Maryland Court of Appeals

18 A. 35

71 Md. 248

DOUGHERTY ET AL. v. MOORE ET AL.

Court of Appeals of Maryland

June 12, 1889

Appeal from circuit court of Baltimore city.

Argued before ALVEY, C.J., and MILLER, IRVING, STONE, BRYAN MCSHERRY, and ROBINSON, JJ.

F S. Hoblitzell, for appellants.

E O. Hinkley, E. Story, and W. Pinkney Whyte, for appellees.

ROBINSON J.

This is a controversy in regard to the title to two funds, or sums of money held on deposit by the Eutaw Savings Bank of Baltimore and the Savings Bank of Baltimore, and claimed, respectively, by the administrator of the wife and the administrator of the husband. McDonald, the husband, opened an account in the Eutaw Savings Bank in 1864, and running down to 1887, when he died. The account was opened in his own name, and so continued till 19th February, 1868, when the name of his wife was added; and thereafter the entry in the pass-book of the bank and in ledger of the bank read: "Laurence McDonald. Sarah McDonald and the survivor, subject to the order of either." On the 4th of January, 1876, the following entry was also made:

"In consideration of my natural love and affection for my wife, Sarah McDonald, I give to her all the money belonging to me credited or to be credited in this book, and I direct the same be paid to her, and her receipt shall be good for the same.

LAURENCE his X mark. MCDONALD."

After these entries were made, McDonald continued to make deposits from time to time, and to draw money on account of the same as his wants or convenience required; the sum of $600 being drawn by him two days only before he died. His wife also drew money from time to time, upon her presenting the pass-book to the bank, and having the several amounts credited thereon as required by the rules and regulations of the bank. The husband and wife died on the same day, the wife surviving her husband little more than one hour.

The question, and the only question, it seems to us, is whether there was a valid gift by the husband to his wife of the money held on deposit by the bank. All agree that, to constitute a valid gift between living parties, or gifts inter vivos, as they were distinguished by the civil law, there must be a delivery of the subject-matter of the gift, with the intent on the part of the donor to transfer the right of property to the donee, or to some one for his use. The donor must renounce, and the donee must acquire, the title and interest in the property given. So long as there is a locus penitenti in the donor, the right to change his mind, to modify, or revoke it, the gift is incomplete. As was said by GIBBS, C.J., in Bunn v. Markham, 7 Taunt. 224: "There is no case which decides that the donor may resume the possession and the donatio continue;" nor will the mere fact of possession in itself be sufficient, but it must appear that such possession was acquired with the consent of the donor, and with the intent on his part to relinquish all right and interest in the subject of the gift, and making it the property of the donee. These are familiar principles, about which there can be no contention. "If the thing be not capable," says Chancellor Kent, "of actual delivery, there must be some act equivalent to it. The donor must part not only with the possession, but with the dominion, of the property." 2 Kent, Comm. 439. Here the subject of the gift is money on deposit in a savings bank, and it is admitted that there...