Harrington v. Emmerman

• Decision Date: 16 November 1950
• Docket Number: No. 10453.,10453.
• Citation: 88 US App. DC 23,186 F.2d 757
• Parties: HARRINGTON et al. v. EMMERMAN et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

88 US App. DC 23, 186 F.2d 757 (1950)

HARRINGTON et al. v. EMMERMAN et al.

No. 10453.

United States Court of Appeals District of Columbia Circuit.

Decided November 16, 1950.

Mr. Stephen G. Ingham, Washington, D. C., for appellants.

Mr. Milton T. Broome, Washington, D. C., for appellee Louise Emmerman.

Before WILBUR K. MILLER, PROCTOR and WASHINGTON, Circuit Judges.

WILBUR K. MILLER, Circuit Judge.

On September 30, 1929, Janie J. Carlin signed a writing declaring her savings account in the Perpetual Building Association to be thereafter a joint one in the names of herself and Louise Emmerman "subject to order of either, and balance at death of either to the survivor."¹ She continued, however, to treat the account as her own and reported the dividends therefrom as part of her own income subject to federal taxation.²

On October 5, 1948, Janie J. Carlin was adjudged to be of unsound mind. Stephen G. Ingham was appointed committee of her person and estate and qualified as such a few days later. Unable to withdraw the balance of some $9,000 in the savings account because Miss Emmerman had possession of the pass book and would not surrender it, the committee filed this suit on November 15, 1948, in the United States District Court against her and the building association. He prayed the court to declare him legally entitled to the balance and to enjoin the building association from paying any part of it to Miss Emmerman.

The latter's answer denied that Mrs. Carlin owned the account and alleged she had refused to part with the pass book "on the ground that the account was a joint account." She stated she had had the book "for months before the patient was declared of unsound mind" and added that she had made withdrawals and had "exercised dominion, control and ownership over said account." She did not say how she obtained possession of the pass book. The building association answered that it would not pay out the money until its ownership had been judicially determined.

On December 25, 1948, before any further steps had been taken in the action, Janie J. Carlin died. The District Court substituted her executors as plaintiffs in the place of the committee and permitted them to file an amended complaint in which they substantially repeated the allegations of the original complaint and added

"* * * that on September 30, 1929, the said Janie J. Carlin transferred her funds on deposit with the defendant Perpetual Building Association to the joint account as aforesaid without consideration and without the intent to give a present interest in the account to the defendant Louise Emmerman; that the said Janie J. Carlin always treated said funds on deposit as her sole property and reported all interest and dividend income therefrom as fully taxable to her in her income tax returns." Pursuant to motions to dismiss made by both defendants on the ground that no claim was stated on which relief could be granted, the District Court dismissed the amended complaint. The executors appeal.

In her motion to dismiss the amended complaint, the appellee³ quoted the language of the deposit agreement and alleged "that the aforesaid contract creating said joint account by its terms establishes as a matter of law that all funds now on deposit at the Perpetual Building Association in the joint account designated Series 36-38 in the names of Janie J. Carlin and Louise E. Emmerman is (sic) the sole property of the said Louise E. Emmerman as surviving joint tenant."

By thus relying upon survivorship, the appellee mistook the nature and status of this action. She treated it as though the amended complaint were the original, or had been substituted for the original. She seems to have supposed that Mrs. Carlin's death had given her unquestionable title to the savings account, regardless of what had happened theretofore. But the committee had claimed the money while Mrs. Carlin still lived, thus raising the question of its ownership at that time, — not after her death. If Mrs. Carlin then owned the fund or an undivided portion of it, the committee's demand entitled him immediately to receive her interest, and the deposit should have been delivered to or divided with him. It was as though Mrs. Carlin herself had required the pass book of Miss Emmerman. Acting through her representative, she demanded the account; she asserted she was the owner of it, thus in effect saying she had not made a present gift of any interest in it, and accused the appellee of wrongfully withholding it from her.

The committee was either right or wrong in claiming ownership. Either Mrs. Carlin owned the account or an interest in it, or she did not. If the committee was right, his demand ended the joint nature of the account and destroyed the survivorship provision; for if Mrs. Carlin was the owner of and entitled to have upon demand the entire fund, Miss Emmerman had no further right or interest of any kind, — and if Mrs. Carlin was the owner of and entitled to have upon demand a one-half interest, then Miss Emmerman was the owner of the other half and was entitled to its immediate enjoyment but was entitled to nothing more.

In other words, the rights and titles of the parties were fixed when the demand was made and were to be judicially determined as of that time; there was no survivorship arrangement thereafter, and whatever interest Mrs. Carlin had in the account passed to her executors.

In this court the appellee follows the same erroneous survivorship theory by contending in her brief that Matthew v. Moncrief, 1943, 77 U.S.App.D.C. 221, 135 F.2d 645, 149 A.L.R. 856, "* * * is determinative of the question as to the conclusiveness of the intention of appellants' decedent under the written agreement here involved, and forbids the offering of oral proof to contradict this fact. And that, this being so, the allegations made in the amended complaint on this phase of the action are immaterial, and will not support a claim for relief."

The Matthew case and Quigley v. Quigley,⁴ Quigley v. Whyte,⁵ and Garrett v. Keister,⁶ also relied upon by the appellee, had to do only with the right of a donee-survivor to take the deposit under a declaration such as the writing involved here. None of those cases dealt with the question now before us: whether, by such a writing, the original depositor transfers the account, or an interest in it, in praesenti to the person whom he designates as joint owner.⁷ That question has not heretofore been presented to this court, and has arisen but seldom in other jurisdictions.

So the question is, what irrevocably vested interest, if any, did Miss Emmerman have in the account at the time the committee demanded the pass book of her? What interest, if any, did Mrs. Carlin, who was still living, then have in the fund? We do not understand Miss Emmerman to contend, and we suppose it would not be suggested, that by the 1929 declaration Mrs. Carlin made a present gift to Miss Emmerman of the entire account and divested herself of any interest in it. If not, then the most Miss Emmerman can claim is that, at the time of the demand, she was the owner of an undivided one-half interest in the fund. She could support that claim only by establishing a present gift of such an interest.

Conceding for the moment that Miss Emmerman owned through gift an undivided one-half interest in the account, it was nevertheless her duty to permit a division of the money between herself and the committee, when the latter demanded the pass book. For, in that situation, she had no right to withhold from him the portion owned by Mrs. Carlin. She cannot justify her failure to do so by saying she feared the committee might withdraw and hold the entire amount if she gave him the book; for she could have gone with him to present the pass book to the building association for a division.⁸ The fact that she did not do so, coupled with her allegation that she had exercised "dominion, control and ownership over said account," makes it appear that she was preventing a severance in the hope that death would make her the owner of all the money. Her conduct was inequitable, to say the least, and justified a court of equity in imposing a constructive trust, which is a remedy employed to prevent unjust enrichment.⁹ Thus Miss Emmerman's own act in rejecting the committee's demand worked a severance as effectively as if the account actually had been divided, with the result that the right of...