Goelz v. People's Sav. Bank

• Citation: 67 N.E. 232,31 Ind.App. 67
• Parties: GOELZ v. PEOPLE'S SAV. BANK.
• Decision Date: 29 April 1903
• Court: Court of Appeals of Indiana

31 Ind.App. 67

67 N.E. 232

GOELZ

v.PEOPLE'S SAV. BANK.

Appellate Court of Indiana, Division No. 2.

April 29, 1903.

Appeal from Superior Court, Vanderburgh County; John H. Foster, Judge.

Action by Mary A. Goelz, executrix of the last will and testament of Mary A. Long, deceased, against the People's Savings Bank, in which Katherine Long and one Bastian intervene as defendants. Judgment for interveners, and plaintiff appeals. Affirmed.

Ireland & Reister, for appellant. James T. Walker and D. Q. Chappell, for appellees.

WILEY, J.

Appellant, as executrix, brought her action to recover a sum of money which had been deposited in the People's Savings Bank by the decedent, which she alleged was a part of the assets of the estate. In the first instance the bank was the only defendant, and subsequently appellees Bastian and Katherine Long filed a petition asking to be made defendants, which petition was granted. Appellant thereupon filed an amended complaint, upon which issues were joined. Trial by the court, finding and judgment for appellees. By the assignment, the action of the trial court in overruling appellant's motion for a new trial is brought into review. The only question raised by the motion for a new trial is that the decision is not sustained by sufficient evidence and is contrary to law.

The correctness of the ruling on the motion for a new trial must be determined upon the following statement of facts as disclosed by the record: For some years prior to her death, Maria A. Long, the decedent, had been a widow. She had four children, consisting of one son and three daughters, all of whom survived her. One of the daughters became executrix of her will. The deceased was possessed of a goodly estate, composed of both real and personal property. All of her children, excepting her son, Louis, lived in Evansville, where she had for many years made her home. Louis had been a nonresident of the state for more than 20 years. The inventory of decedent's estate showed that she possessed personal property of the value of $3,635.75. In 1875, Louis Long married the appellee Katherine Long. They had born to them one child, named Josie, who is now grown and married. In 1876, without any just cause, so far as the record shows, Louis Long abandoned his wife and child, and thereafter never contributed anything to their support. During the 20 years he occasionally visited Evansville, but never visited his wife or child. During all this time his wife, by her own labor, supported herself and daughter, until in recent years she became dependent upon others. All these facts were known to the decedent. In 1893 the decedent executed a will, by the terms of which she gave $5 to her son Louis, and all the residue of her estate to her three daughters. The evidence does not show that she ever made an advancement to her son. At or about the time decedent made her will, Louis visited her at her home. January 4, 1898, the decedent deposited in the People's Savings Bank of Evansville, Ind., for and in the name of her son, Louis Long, $900, which was placed to his credit on the books of the bank. At the time of the deposit the bank issued a passbook in the name of Louis, showing that said sum of money had been deposited in his name and to his credit. The passbook was given to the decedent, who took it home with her, and kept it in her possession, until her death. About a year after the deposit was made, the decedent sent to Louis, by mail, to Nashville, Tenn., a written order for him to sign, authorizing the payment of any money deposited in the name of either of them or both of them in said bank, to be paid upon the receipt of either of them. He received said order, and returned it to his mother without signing it. The passbook came into the possession of appellant upon the death of her mother and the money so deposited was not included in the inventory she filed as a part of the assets of the estate, and no account of it was taken by her. After the death of the decedent, Katherine Long, wife of Louis, commenced an action against her husband for support and maintenance, and made appellee bank a party. She averred that the bank had on deposit, to the credit of Louis, said money, and asked to have it applied toward her support. The bank in that action answered, admitting that it had the sum of $979.10, which included accrued interest, on deposit to the credit of said Louis, and that it had no interest in the controversy between Katherine and Louis further than that its rights be protected. At or about the time of the commencement of this suit the passbook above referred to was delivered to Louis, and he employed counsel to appear for him in that action and protect his interests. Such proceedings were had in that action as upon trial by the court there was a finding that the money so deposited was the money of Louis Long, and belonged to him, and that the same should be applied to the support and maintenance of Katherine. To carry out the order of the court, appellee Bastian was appointed receiver, and by order of the circuit court, in which the case was tried, the money so deposited was ordered to be paid to the receiver, which was done. The daughter of Louis Long testified that he told her that his mother had given him money, or deposited it for him.

The evidence is uncontradicted that the decedent deposited the $900 in bank as a gift to her son. She talked to a number of her neighbors about it, and told all of them what she had done. One witness testified that, just after the decedent had returned from a visit to her son, she told him she had been to the bank and deposited money for him. The same witness testified that Louis Long told him that “if anything happened he had money here [Evansville] in bank.” Notwithstanding the fact that Louis testified that he did not know that his mother had deposited money to his credit in the bank, there is an abundance of evidence for the trial court to have reached the conclusion that he did know it. When asked to sign an order so that any money deposited in the name of his mother or himself might be paid out on the receipt of either of them, and refusing to sign it, is strong evidence that he knew that the money had been deposited for him, and, in refusing to sign the order, he thereby exercised dominion over it, and recognized it as his own. There is no question but what after his mother's death he attempted to exercise dominion over it, for he employed counsel in a pending suit to which he was a party, wherein was involved the question of his title and right to the money, to protect his interest therein.

Counsel for appellant urge that the mere fact of the decedent depositing the money in bank to the credit of her son was not a gift inter vivos, because the requisites to constitute such gift were wanting. The requisites of a valid gift inter vivos are that there must be a gratuitous and absolute transfer of the property from the donor to the donee, taking effect at once, and fully executed by a delivery of the property by the donor and an acceptance thereof by the donee. 14 Am. & Eng. Encycl. of Law (2d Ed.) 1015; Smith v. Dorsey, 38 Ind. 451, 10 Am. Rep. 118;Daubenspeck v. Biggs, 71 Ind. 255;Smith v. Ferguson, 90 Ind. 229, 46 Am. Rep. 216;Bingham v. State, 123 Ind. 281, 23 N. E. 756;Mercantile Safe Deposit Co. v. Huntington, 89 Hun, 465, 35 N. Y. Supp. 390;Cambreleng v. Graham, 79 Hun, 247, 29 N. Y. Supp. 419;Telford v. Patton, 144 Ill. 611, 33 N. E. 1119;Williamson v. Johnson, 62 Vt. 378, 20 Atl. 279, 9 L. R. A. 277, 22 Am. St. Rep. 117. It must appear that the donor parted with the possession of the thing or article, in order that the donee should receive it, to constitute a delivery. Buschian v. Hughart's Adm'r, 28 Ind. 449.

Under the facts disclosed by the record, there is no doubt but what the decedent parted with the possession of the money deposited to the credit of her son. She evinced her intention in making the deposit by statingto her neighbors and friends that she had given the money to her son. That it was gratuitous and absolute on her part there can be no doubt. By making the deposit in the name of and to the credit of her son she lost dominion over it, and was powerless to withdraw it by check or otherwise. When a gift has become executed or consummated, and has passed from the control of the donor, it can only be revoked by the consent of the parties. Pruitt v. Pruitt, 91 Ind. 595;Richards v. Reeves, 149 Ind. 427, 49 N. E. 348. It would seem from the facts disclosed by the record that the donor made some attempt to revoke the gift, in part at least, but failed, because the donee would not consent to such revocation. The fact that the donor made no further effort to revoke it strongly tends to prove that she recognized the gift as fully consummated. The repeated declarations of the decedent that she had made the gift strengthens the proposition.

It remains to determine whether the other requisites were present, that is, whether there was a delivery to and an acceptance by the donee. The fact that the decedent made the gift just after she had returned from a visit to her son may properly be considered in this connection. While there must be a delivery and acceptance to complete the gift, it does not necessarily follow that the delivery must be made directly to the donee, and, under certain conditions, acceptance will be presumed. The delivery may be made to the donee or some one for him. This rule prevails in England, and most, if not all, of the states of the Union. It would take too much space to cite all the authorities in support of this proposition, and we merely cite volume 14, Am. & Eng. Encycl. of Law (2d Ed.) pp. 1017, 1018, and cases cited.

In this case the delivery was not made directly to the donee, and, if there was a delivery, it was to a third person for him. Where a delivery is thus made to a third person, the question whether the gift was...