Hallowell Sav. Inst. v. Titcomb

• Decision Date: 19 December 1901
• Citation: 96 Me. 62,51 A. 249
• Parties: HALLOWELL SAV. INST. v. TITCOMB et al.
• Court: Maine Supreme Court

51 A. 249

96 Me. 62

HALLOWELL SAV. INST.

v. TITCOMB et al.

Supreme Judicial Court of Maine.

Dec. 19, 1901.

(Official.)

Report from supreme Judicial court, Kennebec county.

Bill of interpleader by the Hallowell Savings Institution against Lendall Titcomb and Martin T. V. Bowman, claimant. Case reported, and decree for claimant.

Argued before WISWELL, C. J., and WHITEHOUSE, STROUT, SAVAGE, and POWERS, JJ.

P. E. and E. O. Beane, for plaintiff.

S. L. Titcomb, for executor.

H. M. Heath and C. L. Andrews, for claimant.

SAVAGE, J. Bill of interpleader to determine ownership of deposit in the plaintiff bank. It is claimed by Lendall Titcomb, Esq., as executor of the last will of Joseph J. Bowman, and by Martin T. V. Bowman, a brother of Joseph. It is not in dispute that the deposit was originally made by Joseph, and in his own name. That being so, it should now come into the hands of his executor for administration, unless in some way Joseph J. Bowman was devested of his title in his lifetime. Martin T. V. Bowman sets up a gift inter vivos, subject to a parol trust, for the benefit of his children, from Joseph to himself, or, if the gift be not sustained, a trust created by Joseph for the benefit of Martin's children. The executor replies that the gift was invalid for want of delivery. The executor also claims that the donor did not intend to part with his dominion and control of the deposit and that no gift was made with intent to take effect in prsesenti, but only, at the most, in futuro, as a testamentary disposition, and that if the gift was imperfect as claimed, a trust cannot now be predicated from a transaction intended as a gift And here we find the only issues presented for our consideration.

No principle of law is more firmly established than that a gift inter vivos is not valid unless there is a delivery to the donee, or to some one for him; unless the donor parts absolutely with all present and future dominion and right of control over it; and unless the gift is intended to take immediate effect, to be complete, as a transfer of title, in præsenti, and is absolute and Irrevocable. Allen v. Polereczky, 31 Me. 338; Dole v. Lincoln, Id. 422; Donnell v. Wylie, 85 Me. 143, 26 Atl. 1092; Bourne v. Stevenson, 58 Me. 499; Hill v. Stevenson, 63 Me. 364, 18 Am. Rep. 231; Robinson v. Ring, 72 Me. 140, 39 Am. Rep. 308; Bank v. Fogg, 82 Me. 538, 20 Atl. 92.

This case shows the following essential facts: In 1809 Joseph J. Bowman deposited $1,500 in his own name in the Hallowell Savings Institution. A short time before February 20, 1900, he asked the treasurer of the bank if he could transfer the account "to his brother M. T. V. Bowman, as he wished his brother's children to have it when he was gone." He was told that it could be done, and the book sent to his brother with his instructions. On February 20, 1900, he presented his deposit book at the bank and requested that it should be transferred to his brother M. T. V. Bowman, which was accordingly done. The account with Joseph J. Bowman on the books of the bank was balanced, and a new account opened with M. T. V. Bowman. The old deposit book was surrendered, and a new book was issued in the name of M. T. V. Bowman, but delivered to Joseph J. Bowman.

Nearly two years before this, Joseph had written to his brother Martin, saying, among other things: "Don't you think you could come on some time before a great while, as I would like for you to know, in case I am taken away, what will come to you." In quoting from this letter, as we shall do in quoting from others, we do not undertake to give literally the writer's illiterate, ungrammatical, and sometimes confused sentences. We give them as we interpret them. March 29, 1900, five or six weeks after the transfer of the deposit on the books of the bank, Joseph wrote to his brother again, saying: "I have transferred to you fifteen hundred dollars, or taken out a saving bank book in your name. If I should be taken away, it is yours, with the understanding that your wife shall have no part of the sum. In case of your death, it must be divided equally among your children. The law is such in this state that I want to have this fixed while I am living. My folks are gone to-day. I could find no pen to write with. I will write with ink, giving you this, so you will have something to show; but, if anything happens that I should need it, I know I can trust you. I have a right to do this. I get three and a half per cent. here. I want the Interest while I live to live on. I don't know but you had better draw the money. I don't know what you could do with it there. Write and tell me what you think. I shall send a writing making this gift now you will have it to show when I am gone."

On April 5, 1900, M. T. V. Bowman replied: "Now, in regard to this gift that you mention. The best way I know of, if you wish to do this, is to send me a New York draft for the amount, and I will pay you four per cent. interest on it as long as you live. You say you are getting 3 1/2 per cent now. * * * Now, I would pay you 4 per cent. Interest as long as you live, and send you the interest semiannually. * * * As you desire it should go to my children, that is all right. * * * If you should prefer that I should draw from here for the money, instead of your sending draft, why instruct me fully what bank to draw on. * * * Please let me hear from you on receipt of this, so I will know what arrangements to make, and what to do in regard to your proposition on the money question."

About this time—probably after the receipt of this letter,—Joseph went to the bank and tried to draw the money, saying that he wished to send it to his brother. The banker refused to pay without the order of Martin, and gave Joseph a blank order to be filled out by Martin for the money. April 28, 1900, Joseph inclosed this blank order to Martin, in a letter in which he said: "Now, I want you to sign the receipt [order] in this letter, and send it back to me, as I put the money in the bank in your name, and cannot withdraw it without your order. There is a trust company in Augusta that pays four per cent I never put any money there. I Want to secure this fifteen hundred to you. In case of my death life is uncertain with you and me both is why I want it divided equally among your children, in case of your death. Now send me the interest. I will get the money as soon as I can without losing interest. * * *

"I have the money In Oakland bank. As soon as I can go there, I will send you a check. * * * Now send the order. If I can do no better, I can draw it here."

To this letter Martin replied on May 8th following. He inclosed the order signed by himself, and said: "I have signed the order on the treasurer of the Hallowell Savings Institution, amount in blank. * * * I think the better way would be for you to send draft on New York for the amount when you draw it I think that would be the safest way. However, fix it just as you think best "When it comes I will put it right out at interest, and send you the interest promptly every six months. * * * Whatever disposition you shall make and send here shall go directly to them [his children], share and share alike, at my death, after you have the profits and interest of it while you live. This, I believe, is just according to your wish and what you stated."

Joseph J. Bowman died Slay 18th following, never having presented the order of his brother to the bank or drawn the money. The deposit book, which he took out in the name of his brother February 20, 1000, when he transferred the account, remained in his possession until his death.

The first objection raised by the executor to the validity of the alleged gift—that of want of delivery—does not appear to us to be troublesome. If the transaction of February 20th was intended to vest title to the deposit immediately and absolutely in Martin, without any further present or future dominion and control of the donor over it, then the case seems to fall within...