First National Bank & Trust Company, of Fargo, a Corp. v. Green
| Decision Date | 17 September 1935 |
| Docket Number | 6348 |
| Citation | 262 N.W. 596,66 N.D. 160 |
| Court | North Dakota Supreme Court |
Rehearing Denied October 18, 1935.
Syllabus by the Court.
1. A completed gift inter vivos is a transfer of property made voluntarily and without consideration, effective immediately and irrevocably on an unconditional delivery, actual or symbolical, having regard to the circumstances and the nature of the property.
2. The record is examined, and it is held, for reasons stated in the opinion, that under the circumstances as disclosed therein a deposit of money in a banking institution to the credit of the depositor " or" another payable on the order of either before or after the death of the other, constitutes a completed gift by the depositor, and on the death of either the survivor takes the whole of the deposit remaining at that time.
Appeal from District Court, Cass County; Daniel B. Holt, Judge.
Action by the First National Bank & Trust Company of Fargo, administrator of the estate of William John Carlisle, deceased, against Sarah Emeline Green, to recover money. From a judgment for defendant, plaintiff appeals.
Affirmed.
Lawrence, Murphy, Fuller & Powers and W. J. Kelly, for appellant.
In order for a gift to be completed and be of binding effect the donor must divest himself of control or dominion of the property which is to form the subject of the gift. Noyes v. Institution for Sav. 164 Mass. 583, 42 N.E. 103, 49 Am. St. Rep. 484; Murray v. Cannon, 41 Md. 466; Howard v. Dingley, 122 Me. 5, 118 A. 592; Battles v. Milbury Sav. Bank (Mass.) 145 N.E. 55; Godwin v. Godwin (Miss.) 107 So. 13; Beaver v. Beaver, 117 N.Y. 421, 6 L.R.A. 403.
A person cannot convey or deliver to himself that of which he already possesses two of the essential properties of a joint tenancy. Deslaruiers v. Senesac (Ill.) 163 N.E. 327; Brietenback v. Schoen (Wis.) 198 N.W. 622; Morristown Trust Co. v. Capstick (N.J.) 106 A. 391; Denigan v. San Francisco Sav. Union, 59 P. 390.
Conmy, Young & Conmy, for respondent.
If the question of intent is clear the right of the parties must be determined solely from its consideration. Kennedy v. Kennedy, 146 P. 650; McCarty v. Holland (Cal.) 158 P. 1045; Clary v. Fitzgerald, 155 A.D. 659, 140 N.Y.S. 536.
When a written instrument is executed by a husband and wife on opening an account with a bank, agreeing that the deposit when made and all accumulations thereof should be held by them as joint tenants, with the right of survivorship each is seized of the whole estate from the creation of the tenancy and the whole vests in the survivor without regard to the prior ownership or title to the property. Gurnsey's Estate, 177 Cal. 211, 170 P. 402; Kennedy v. McMurray, 169 Cal. 287, 146 P. 647, Ann. Cas. 1916D, 515; Crowley v. Savings Union Bank etc. Co. 30 Cal.App. 144, 157 P. 516.
When a joint deposit agreement with survivorship rights is executed by two parties, deposit vests in survivor without regard to prior ownership. Hill v. Badeljy, 290 P. 637.
Where intention of parties making joint deposit with survivorship rights is evidenced by a written agreement, intention ceases to be an issue. Hill v. Badeljy, 290 P. 637; Miller v. American Bank & T. Co. 206 P. 796; 3 R.C.L. 527; Illinois Trust & Sav. Bank v. Van Vlack, 141 N.E. 548; Reder v. Reder (Ill.) 143 N.E. 418; N.J. Title Guarantee & T. Co. v. Archibald, 107 A. 472; Commonwealth Trust Co. v. Grobel, 114 A. 353.
This is an action to determine the ownership of a deposit in the Northwestern Mutual Savings & Loan Association.
William J. Carlisle was a native of Canada. Many years ago he came to Fargo, where he resided until his death. He accumulated considerable property. He had a number of brothers and sisters. His wife died some time prior to December, 1931. He was old and sick and alone so he arranged with the defendant Mrs. Green, one of his sisters, that she should come to Fargo and live with him until such time as he could make suitable disposition of his household effects and then he would return with her to her home in Canada, there to pass the rest of his days. In accordance with this arrangement Mrs. Green came to Fargo in December, 1931. Prior to the death of his wife, Mr. Carlisle and she had had a joint account (with right of survivorship) in the Northwestern Mutual Savings & Loan Association. On February 5, he took his sister Mrs. Green to the office of the association, drew out the balance that remained in the joint account that he and his wife had had, and redeposited it to the credit of William J. Carlisle or Sarah E. Green. At the same time he and Mrs. Green signed and filed the following statements which were printed on the signature card controlling the account required in such cases of depositors and shareholders in the loan association, to wit:
"We the undersigned do hereby assign and transfer, one to the other in joint tenancy, with the right of survivorship, all Optional Payment Shares (Class 'E') of the Northwestern Mutual Savings and Loan Association, of Fargo, N.D., now or hereafter standing to our credit on the books of said association, together with all moneys now, or hereafter, deposited in said account, and each constitutes the other his or her attorney in fact to withdraw any share or any money deposited in said account."
The ledger card made up by the bank from the deposit slip and the signature card, read: "Joint owners, payable to either, before or after the death of the other."
Thereafter, and on the same day, Carlisle made a further deposit of $ 75 to such account. He received a passbook made out to himself and Mrs. Green which he retained in his possession. He told Mrs. Green that he had made this deposit to their joint account and that she was to be the owner of it after his death. The treasurer of the association testified that he talked with Mr. Carlisle at the time this deposit was made. That the deposit was in a joint ownership account. That either Carlisle or Mrs. Green might draw the whole or any part thereof and that on the death of either the survivor would have whatever remained in the account. He further testified that Carlisle was fully conversant with the effect of what he was doing and intended to effectuate that identical thing. Thereafter and on February 20, Carlisle died intestate. He had made no withdrawals from the account; neither had Mrs. Green. He had made no deposits after February 5, and Mrs. Green had never made any. And it may be that Mrs. Green did not know that she could draw on this deposit prior to his death. After his death, however, she deposited very substantial sums in the account and still later withdrew the whole of the deposit, both that which was deposited prior to Carlisle's death and that which she had subsequently deposited.
The plaintiff is the administrator of the estate of Carlisle. Plaintiff claims the money paid into the loan association is part of Carlisle's estate and seeks to recover the amount thereof from Mrs. Green.
It does not clearly appear from the record just what the effect of the transaction with the savings and loan association was. Apparently shares of some sort were subscribed for and possibly issued, but the record is silent regarding this matter except as appears from the card signed by Carlisle and Mrs. Green above set out. It does appear, however, that whatever the nature of the transaction with the association, the so-called depositors were entitled to interest at stated intervals and might withdraw the money deposited or paid in by them.
There is a great diversity of holding in the cases respecting the rights of the parties in whose names joint deposits in savings or other banks are made. This is particularly so as respects the rights of the party who contributes none of the money constituting the deposit where the other party who does contribute dies. Some of the cases have held such deposits effective or ineffective as the case may be to constitute gifts causa mortis, gifts inter vivos, or as creating trusts some have held them to constitute voluntary bestowments in joint tenancy, some to be merely abortive attempts at testamentary disposition, and some to be contractual arrangements for the convenience of the depositor without benefit to the other party. See Denigan v. San Francisco Sav. Union, 127 Cal. 142, 59 P. 390, 78 Am. St. Rep. 35; Erwin v. Felter, 283 Ill. 36, 119 N.E. 926, L.R.A.1918E, 776; Kelly v. Beers, 194 N.Y. 49, 86 N.E. 980, 128 Am. St. Rep. 543; Deal v. Merchants & M. Sav. Bank (Parrish v. Merchants & Mechanics' Sav. Bank) 120 Va. 297, 91 S.E. 135, L.R.A.1917C, 548; Moskowitz v. Marrow, 251 N.Y. 380, 167 N.E. 506, 66 A.L.R. 870; Cleveland Trust Co. v. Scobie, 114 Ohio St. 241, 151 N.E. 373, 48 A.L.R. 182; Re Hodgson, 50 Ont. L....
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