Gimbel v. Gimbel

• Decision Date: 17 April 1925
• Docket Number: 39,40.
• Citation: 128 A. 891,148 Md. 182
• Parties: GIMBEL ET AL. v. GIMBEL. CONNER ET AL. v. GIMBEL.
• Court: Maryland Court of Appeals

128 A. 891

148 Md. 182

GIMBEL ET AL. v. GIMBEL.

CONNER ET AL. v. GIMBEL.

Nos. 39, 40.

Court of Appeals of Maryland

April 17, 1925

Appeals from Circuit Court No. 2 of Baltimore City; Walter I Dawkins, Judge.

Two bills by Mary Gimbel, tried together, one against Frederick H. J. Gimbel and another, and the other bill against Elizabeth Conner and another. Decree for complainant in each case, and defendants in each case appeal. Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and WALSH, JJ.

J Purdon Wright, of Baltimore, for appellants.

Charles B. Backman and Young & Crothers, all of Baltimore, for appellees.

WALSH J.

The sole question presented in these cases is whether or not money deposited in trust for two people in a building association, "subject to the order of both only," can, under the evidence in the record, be found to have been so deposited by mistake, and the original depositor authorized to withdraw it without the consent of the other party.

The appellee is a widow, 65 years of age, and has three children, John, who is not a party to these proceedings, and Frederick and Elizabeth, who, together with the Garrison Lane Building & Savings Association No. 1, are the appellants. In November, 1920, the appellee deposited $1,000 in each of three separate accounts in the building association, in the joint names of herself and each of said children. Except for the change in the name of each child, these deposits were in the following words:

"In trust for Mary Gimbel, and Frederick Gimbel, joint owners, subject to the order of both only, the balance at the death of either to belong to the survivor."

The money so deposited belonged to the appellee, and was practically all she had; the deposits were made voluntarily for the expressed purpose of avoiding any "argument or court trials" between her children after her death, and the deposit books were retained by the appellee. The dividend checks subsequently issued by the building association were in the joint names of the respective parties, and all of the children willingly indorsed these checks for the appellee from time to time, and she kept the proceeds of the checks. In October, 1922, $100 of the money deposited in trust for the appellee and her son Frederick was withdrawn, and the money used by the appellee, and in October, 1922, $500 additional was withdrawn; the appellee getting $50, and $450 being used by Frederick. These checks were signed by both Frederick and the appellee. The $1,000 deposited in trust for the appellee and her daughter was intact at the time these cases were filed, though all dividends paid on it had been withdrawn and used by the appellee, and $700 had been withdrawn from John's account and loaned to him by his mother, which loan he later repaid to her. In the spring of 1923 the appellee, who had been supporting herself and adding to her meager savings by cleaning offices, bought a home in which to spend her declining years, and she asked her children, all of whom were married and living in their own homes, to join with her in signing checks for the money remaining in the three accounts, so that she could pay the balance due on the house so purchased. Her son John complied with her request, but the other two children refused to sign checks for the money in their accounts.

The appellee thereupon filed a bill in equity against each of said two children and the building association, alleging that she had misunderstood the legal effect of the deposits she had made, and setting out that it was her intention, at the time she made the deposits, to retain the power to use the money herself, should she have occasion to do so, and further alleging that she explained this to all three of her children, and that this arrangement was so understood and agreed to by all of them. The two children against whom the suits were brought filed answers, denying that there was any such understanding or agreement, and alleging that the money so deposited by their mother constituted an irrevocable gift which they proposed to keep, and the building association also filed an answer, in each case setting out that the legal effect of the deposits was fully explained to the appellee at the time she made them, and that she had not acted through mistake or misapprehension. Testimony was taken in open court, and the learned chancellor, after a full hearing and argument, granted the relief prayed in the bills of complaint. All of the defendants appealed, and, as the questions presented in the two cases are identical, we will dispose of both appeals in this opinion.

There can be no doubt that under the decisions in this state the language used in making the deposits in the present cases created valid trusts. In the leading case of Milholland v. Whalen, 89 Md. 212, 43 A. 43, 44 L. R. A. 205, the deposit was in the following words:

"Metropolitan Savings Bank, in account with Miss Elizabeth O'Neill. In trust for herself and Mrs. Mary Whalen, widow, joint owners, subject to the order of either; the balance at the death of either to belong to the survivor."

The court held that:

"Such a deposit * * * constitutes a valid declaration of trust, in the absence of contravening proof; and that when a trust is thus

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