Godwin v. Godwin

• Decision Date: 15 February 1926
• Docket Number: 25400
• Citation: 141 Miss. 633,107 So. 13
• Court: Mississippi Supreme Court
• Parties: GODWIN et al. v. GODWIN et al. [*]

107 So. 13

141 Miss. 633

GODWIN et al. v. GODWIN et al. ^[*]

No. 25400

Supreme Court of Mississippi

February 15, 1926

Division A

1. BANKS AND BANKING. Under statute, where deposit in name of two payable to either, bank discharged by payment to survivor (Hemingway's Code, section 3613).

Under Hemingway's Code, section 3613, where deposit in bank is made in name of two persons, payable to either, bank is discharged by payment to survivor of balance existing at death of the other.

2. EXECUTORS AND ADMINISTRATORS. One's deposit in bank though made in name of himself and wife, payable to either held to belong to his estate (Hemingway's Code, section 3613).

Hemingway's Code, section 3613, authorizing bank, in case of deposit in name of two, payable to either, to pay it to the survivor on death of one, being part of banking law, and not purporting to change the law on descent and distribution, while giving wife of decedent, who had his bank account changed to the name of both, payable to either, with intention that she should have the fund on his death, right to collect it on his death, did not vest her with title thereto; there having been no delivery of possession, necessary for valid, gift, so that she must account therefor to the estate.

HON. N. B. SLEDGE, Chancellor.

APPEAL from chancery court of Tippah county, HON. N. R. SLEDGE, Chancellor.

Trial of issue between G. J. Dean, administrator of W. F. Godwin, deceased, joined by some of decedent's heirs, and Mrs. Mary Lee Godwin, widow of decedent, and the Bank of Blue Mountain as to liability for a deposit of deceased in bank collected by the widow. Holding was in favor of the latter, and W. C. Godwin and the administrator appeal. Reversed and remanded.

Reversed and remanded.

Fred B. Smith, for appellants.

Does section 3613, Hemingway's Code, intend to change the general rule of law relative to gifts, and mean that when one deposits money in a bank to the credit of himself and another, that this act alone constitutes a valid gift of the money deposited to the other party, or was that statute merely enacted for the protection of banks?

This statute can have no effect, except to the extent which it is a protection to the bank, it cannot possibly be construed to mean that either party has a legal right to the money so deposited, on the death of the other, regardless of circumstances. It merely fixes the rights of the joint depositors and the bank, and in no way fixes the respective rights and liabilities of the joint depositors themselves.

Was there a legal gift of the money or any money to Mrs. Mary Lee Godwin? There is no proof as to just when the account with the bank was changed from the name of "W. F. Godwin" to that of "W. F. Godwin and wife." There is absolutely no proof as to what amount was in the account at that time. If that act is the thing which constituted the gift, then only the amount on deposit at that time would have been given, and later deposits would not have been contained in the alleged gift. Mr. Godwin never relinquished his absolute control and dominion over the deposit, and never in any manner delivered the pass book evidencing the deposit to the appellee, Mrs. Godwin, but even had he done so, under the case of Pace v. Pace, 107 Miss. 296, this is not sufficient delivery. See, also, 20 Cyc. 1246 (4); Wagoner's case, 174 Penn. State 558, 52 A. S. R. 829; Carradine v. Collins, 7 S. & M. 438; Wheatley v. Abbot, 32 Miss. 343; Drew v. Hagerty, 81 Me. 231, 10 Am. St. Rep. 255; Meyer v. Meyer, 106 Miss. 640.

The general rule of law is clear that where a deposit is made in a bank to the joint account of the depositor and another, this alone does not constitute a gift of the money deposited. It is never effective as a gift where the original depositor retains dominion over the deposit. There must be a delivery of the deposit to the donee, and the relinquishing of dominion over it by the donor, just as in the case of the gift of any other commodity in order to constitute a valid gift. The rule is stated in 28 C. J., page 665. See, also, Noyes v. Institution for Savings, 164 Mass. 583, 49 A. S. R. 484; Marshall v. Strattan, 96 Miss. 471, and Meyer v. Meyer, 106 Miss. 640.

S. N. Ayres, also, for appellants.

Mrs. Mary Lee Godwin acquired no right outside the statute because generally the courts hold that such a deposit does not convey the property after death. In Ann. Cases, 1916 D, pages 520 et seq., we find an exhaustive resume of the cases in point wherein they say: "The deposit of money in a bank in the names of the depositor and another is not such delivery as will make an effectual gift of the sum so deposited to the person jointly named with the depositor," citing Dennigan v. Hibernia Savings Bank, 127 Cal. 137, 59 P. 389; Murray v. Cannon, 41 Md. 466; Staples v. Berry, 110 Me. 32, 85 A. 303; Daugherty v. Moore, 71 Md. 248, 17 Am. St. Rep. 524.

The case at bar is similar to the last named case in that W. R. Godwin retained dominion over these funds at all times up to his death. He not only checked on the account continuously but made deposits as well, and there was never any specific sum subject to the claim of gift. There was never any delivery. Therefore, we submit that the appellee, Mrs. Mary Lee Godwin, should be ordered to account to the administrators for this money.

G. L. Jones, and Orbrey Street, for appellees.

The only question for decision as to this appellee is whether the deposition of money in the bank by W. F. Godwin for his wife and giving her control over it then, and turning over the pass book for her was a valid gift, when so manifestly intended by him. To effect a gift of money on deposit, whatever is sufficient to place the fund under the donee's control so that nothing further is necessary on the part of the donor to give possession is enough. 12 R. C. L., page 946, sec. 23; 32 L. R. A. 766; Carradine v. Carradine, 58 Miss. 286; 14 Ency. L. (2 Ed.), page 1019.

The intent in making the deposit should control. And the nature of the deposit is a question of intention and that intention may be established independently of the form of the deposit. 14 Am. & Eng. Ency. L, page 1037; 20 Cyc. page 1198. On constructive and symbolical delivery, see 14 Am. & Eng. Ency. L. (bb) page 1021. The trend of modern decisions is toward constructive delivery as a declaration of gift, accompanied by means to obtain the gift. The intent should control. 20 Cyc. page 1199; Carradine v. Collins, 7 S. & M. 428; Young v. Young, 25 Miss. 38; Harmon v. McFarlan, 99 So. 566.

OPINION

MCGOWEN, J.

Upon pleadings duly made up in the chancery court of Tippah county, the administrator, joined by some of the heirs at law of W. F. Godwin, contended that Mrs. Mary Lee Godwin and the Bank of Blue Mountain should account to the estate for a deposit made in the Bank of Blue Mountain by the deceased, W. F. Godwin, before his death.

Some time in 1921 W. F. Godwin had his bank account changed so that it was in the name of "W. F. Godwin or Wife," and from that time until his death his account was so carried. The amount of money in the bank at the date of his death in April, 1923, was one thousand one hundred twenty-eight dollars. From the time he changed his bank account as indicated above, the ledger slips before us indicate that the account had varied, running from five hundred dollars to four thousand three hundred fifty-three dollars and sixty-three cents. Apparently basing his decision upon a construction of section 3613 of Hemingway's Code, together with the manifest intention of W. F. Godwin that his wife should have the balance of his bank account upon his death, the chancellor held that the bank and the widow were discharged.

The proof shows in this case that Mr. Godwin applied to the banker for advice as to how he might conduct...