Holman v. Deseret Savings Bank

• Decision Date: 10 May 1912
• Docket Number: 2306
• Citation: 124 P. 765,41 Utah 340
• Court: Utah Supreme Court
• Parties: HOLMAN v. DESERET SAVINGS BANK et al

124 P. 765

41 Utah 340

HOLMAN v. DESERET SAVINGS BANK et al

No. 2306

Supreme Court of Utah

May 10, 1912

Rehearing denied June 25, 1912.

APPEAL from District Court, Third District; Hon. Geo. G. Armstrong Judge.

Action by Helen M. Holman against the Deseret Savings Bank and another, and John N. Eslinger and another, intervenors.

Judgment for defendants. Plaintiff appeals.

AFFIRMED.

Allen T. Sanford for appellant.

J. E Darmer, H. J. Dininny and S. P. Armstrong for respondents.

FRICK, C. J. McCARTY and STRAUP, JJ., concur.

OPINION

FRICK, C. J.

The appellant brought this action to recover a deposit in the Deseret Savings Bank, one of the respondents, amounting to $ 498.71, which, it was alleged, was a gift to her from one Carrie L. Eslinger, deceased.

The controlling facts established by the evidence are, in substance, as follows:

The appellant and said Carrie L. Eslinger, deceased, the latter being a married woman, on the 21st day of June, 1907, and for about twenty-four years prior thereto, were friends and residents of Salt Lake City. On said date the appellant and Mrs. Eslinger went to the Deseret Savings Bank aforesaid in which Mrs. Eslinger had a certain sum of money on deposit. Said savings Bank is not engaged in commercial banking, and the deposit was entered in a passbook issued by the bank for that purpose, and the account was entered in such book as follows: "The Deseret Savings Bank in account with Carrie L. Eslinger, Eva Z. Dean." Mrs. Eslinger presented the passbook to the cashier, and requested that the account as it then stood be changed. The cashier received the book and accordingly changed the account by transferring the same from the old book to a new one in which the account was entered in the following form: "The Deseret Savings Bank in account with Carrie L. Eslinger or Helen M. Holman." When Mrs. Eslinger presented the passbook and requested that the account be changed as aforesaid, what occurred at that time is testified to by the cashier in the following words:

"Mrs. Eslinger came in with the book of the same number with this which was then in the name of Carrie L. Eslinger and Mrs. Dean, and requested that the old book be changed so that it was to be made payable either to Carrie L. Eslinger or Mrs. Helen M. Holman, stating at the time that she wished it so fixed that, in case of her death, Mrs. Helen M. Holman could draw the money, and she wished her to have it."

The cashier also testified that he told the woman at the time the deposit was changed as aforesaid that in the form it was made by presenting the passbook either one could withdraw the money either before or after the death of either of them. He also stated that such was the effect of the deposit while it was in the names of Mrs. Eslinger and Mrs. Dean, but, as the cashier remembered the fact, nothing was said by Mrs. Eslinger when the deposit was made in Mrs. Dean's name that she intended Mrs. Dean to have the money. From what is said by the cashier it seems that, so far as the bank was concerned, the only change that was effected by changing the account as aforesaid was to substitute the name of Helen M. Holman for that of Eva Z. Dean. The record discloses no other express statement or declaration by Mrs. Eslinger from which one could deduce the fact that she intended the transaction as a gift inter vivos. There are some circumstances, however, from which this inference might be drawn. For example, on the day following the foregoing transaction, Mrs. Eslinger made her will in which she made no less than twenty-eight specific bequests to fourteen different persons of whom Helen M. Holman is one. In said will she refers to some money on deposit in another bank, but says nothing about the money in question. Again, according to the testimony, the passbook was given to or left with Mrs. Holman, and she had it when Mrs. Eslinger died, in November, 1907. Upon the other hand, it is also true that at the time the account was changed Mrs. Eslinger intended to go, and on the second day thereafter did go, to Pueblo, Colo., for an extended visit with some relatives. At that time she was in ill health, and suffering with some disease of the kidneys from which she died in the November following. She may then have been induced to change the account for the purpose of making it possible for her friend Mrs. Holman to draw the money as her agent or trustee in view of the fact that Mrs. Dean had died, as appears from the evidence; that is, she may have made the deposit in the form it was made as a matter of business convenience, and not with the intention of making a gift. If the latter view be indulged, then the placing of the passbook into the possession of Mrs. Holman may be explained upon other grounds than that a gift of the fund was intended by giving her the passbook. There are also some other facts and circumstances in evidence, and when all are considered, there is nothing from which a clear intention to make a gift of the deposit on the part of Mrs. Eslinger can be deduced.

After making findings in accordance with the foregoing facts, the court, upon the question of whether Mrs. Eslinger intended to make a gift, found as follows:

"That at the time of said Carrie L. Eslinger said savings deposit book was in the possession of said plaintiff Helen M. Holman, and had been so in the possession of said Helen M. Holman before the death of said Carrie L. Eslinger, but such possession was not delivered by said Carrie L. Eslinger with the intent to part with her rights or interest therein, or to relinquish her control over said deposit, and the said Carrie L. Eslinger up to the time of her death still retained control over said deposit and said deposit book, and did not give or deliver to plaintiff said deposit book or said deposit absolutely or unconditionally, or in order to make the plaintiff a gift of said amount so deposited, and neither said book nor said deposit is the property of or belongs to plaintiff."

Appellant's counsel insists that the findings, conclusions of law, and judgment are erroneous, and he states the grounds of his contentions as follows:

"Because, first, the plaintiff and Carrie L. Eslinger were joint tenants or joint owners and under the rule of law governing joint tenants it belongs to the survivor; or, second, the gift was complete and title was vested in the plaintiff. All the requirements of a gift inter vivos were complied with."

Quite a number of definitions of what constitutes a gift inter vivos are given in 4 Words & Phrases, pp. 3091, 3092, in which is one taken from the case of Liebe v. Battmann (Or.), 33 Ore. 247, 54 P. 662, which in our judgment is as complete a definition as is usually found in the books. The definition there given is as follows:

"Gifts inter vivos have no reference to the future, and go into immediate and absolute effect. To constitute such a gift, the donor must be divested of, and the donee invested with, the right of property in the subject of the gift. It must be absolute, irrevocable, without any reference to its taking place at some future period. The donor must deliver the property, and part with all present and future dominion over it."

Assuming competent parties, we think the foregoing is a correct statement of the elements that are necessary to constitute a valid gift inter vivos. Surely no one will seriously contend that the arrangement between Mrs. Eslinger and Mrs Holman testified to by the cashier constituted an executed gift inter vivos. Nor can it be assumed from anything that was said or done by Mrs. Eslinger that she manifestly intended to divest herself of the title to the money on deposit, and to vest the title thereof in Mrs. Holman. All that can be affirmed with any degree of certainty in that regard is that it is possible that Mrs. Eslinger either intended to make a gift of the whole of the deposit to Mrs. Holman, or that she intended to create a joint tenancy, whereby she and Mrs. Holman should be joint owners of the money on deposit with the right of either to draw upon it during life and the survivor to take any remainder that might be left in the bank on the death of the other joint owner. The mere fact that it was understood as the cashier testified that either Mrs. Eslinger or Mrs. Holman had the authority to withdraw the whole or any part of the deposit entirely destroys the theory of a completed gift of the whole fund. True, Mrs. Holman had the passbook, but it must be assumed that she had it only for the purpose of making effective the arrangement that either one could draw upon the deposit by presenting the passbook at the bank. Under the arrangement testified to by the cashier, either one was entitled to obtain the passbook from the other on demand. While this may not have been expressed, it is clearly implied from the fact that it was intended that either could draw upon the fund in the bank by presenting the passbook. It should also be...