Houghton Rice And Fred Bugbee, Exrs. v. Bennington County Savings Bank; Charles A. Maurer, Claimant

• Decision Date: 26 January 1920
• Citation: 108 A. 708,93 Vt. 493
• Parties: HOUGHTON RICE AND FRED BUGBEE, EXRS. v. BENNINGTON COUNTY SAVINGS BANK; CHARLES A. MAURER, CLAIMANT
• Court: Vermont Supreme Court

108 A. 708

93 Vt. 493

HOUGHTON RICE AND FRED BUGBEE, EXRS. v. BENNINGTON COUNTY SAVINGS BANK; CHARLES A. MAURER, CLAIMANT

Supreme Court of Vermont

January 26, 1920

May Term, 1919.

ASSUMPSIT by the plaintiffs, as executors of the last will and testament of one Richard M. Houghton, to recover of the defendant Savings Bank a certain deposit claimed by them as the property of said estate, and also claimed by the claimant, Charles A. Maurer, as his property.Trial by jury at the December Term, 1918, Bennington County, Fish, J presiding.Verdict and judgment for the claimant.The plaintiffs excepted.The opinion states the case.

Motion to reargue denied.Judgment reversed and cause remanded.

Henry Chase for the plaintiffs.

James K. Batchelder and Robert E. Healy for the claimant.

Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

SLACK

This is a controversy over the ownership of a deposit in the defendant bank.The plaintiffs claim that it belongs to the estate of Richard M. Houghton, deceased, and brought this suit to recover it for the estate.Maurer claims it as a gift inter vivos, and also that he acquired title thereto under an order given by one Hawks, concerning which more will appear later.Trial was had by jury.At the close of all the evidence the plaintiffs moved for a directed verdict.The motion was overruled, subject to the plaintiffs' exception, and there was a verdict and judgment for the claimant.

While this motion is not in the most approved form we think that it fairly raised the questions: (1) That the evidence did not show a valid delivery of the order and bank book by Houghton to the claimant; and (2) that it did not show an intention on the part of Houghton to convey a joint interest in the deposit to the claimant.At least, it seems to have been so treated by the court below, and we so treat it.Castonguay v. Grand Trunk Ry. Co., 91 Vt. 371, 100 A. 908.

Under this motion the evidence must be weighed in the light most favorable to the claimant.Fitzsimons v. Richardson et al., 86 Vt. 229, 84 A. 811;Morris v. Trudo, 83 Vt. 44, 74 A. 387, 25 L.R.A. (N.S.) 33.

It tends to show that Houghton owned a place in Bennington which he sold to Hawks, early in September, 1917, reserving a life lease.Houghton was to take in part payment the deposit in the defendant bank, which Hawks then owned.He told Hawks that "he wanted the book payable to himself or Charles Maurer, or the survivor of either."Hawks went to the bank where the deposit was, accompanied by Maurer, to find out how the transfer should be made to meet Houghton's wishes.He there procured a blank order into which Maurer there wrote the words, "Richard M. Houghton or Charles A. Maurer, or either, or the survivor of either of them."They then returned to Houghton's house, the place sold to Hawks, the latter figured the amount due on the deposit, inserted it in the order and signed it; Maurer signing as a witness.It did not appear that Houghton knew that Maurer went to the bank with Hawks or that he had to do with writing the order.Maurer drew the deed from Houghton to Hawks and the life lease to Houghton, at Houghton's request, and was at the latter's house in connection with this transaction, when the order was completed and delivered.The material part of the order follows: "Sept. 5th, 1917.

"Treasurer Bennington County Savings Bank:

"Pay to the order of Richard M. Houghton or Charles A. Maurer, or either, or the survivor of either of them," etc.

Hawks was called as a witness by the plaintiffs, and, after stating who was present when the deed was signed, testified touching the delivery of the order and bank book as follows:

"Q.As this part of the consideration was passed what did you do with this book and order personally?A.I gave them to--on the table to Uncle Richard and Charles Maurer.

"Q.Youleft them on the table?A.Yes, sir, I laid them on the table."

It appeared that the table referred to was Houghton's kitchen table; that Houghton, Maurer, and one Spencer were present at the time; that immediately following the incident testified to, the witness took his deed and went away.On crossexamination by the claimant the witness testified:

"Q.And then you delivered the book and order, as you have already stated, to Uncle Richard Houghton?A.Yes, and the check."

Recalled by the claimant, the witness testified:

"Q.Youtestified in your direct yesterday about the house of Richard Houghton when the deeds were delivered and this pass book and order were delivered to Mr. Houghton and Mr. Maurer.Now I ask you if after that delivery, as you have stated, you saw that pass book in Mr. Maurer's hands?A.Yes, sir.

"Q.And also in Mr. Houghton's?A.Yes, sir.

"Q.Right on that occasion, this was?A.Yes, sir, right then."

The claimant called his brother and one Cole, who testified that they saw the order and bank book in the claimant's possession at his office a short time after the order was given.The latter part of September, Hawks helped Houghton clean out the latter's safe and then found the order and bank book among other papers of Houghton in the safe.They were placed in an envelope, Houghton's name written thereon, and Hawks, accompanied by Houghton, went to the First National Bank of Bennington, where the envelope and its contents were delivered to the president of that bank; Hawks then telling him in the presence of Houghton: "Uncle Richard would like to have you take care of that envelope for him."The envelope and its contents remained at that bank continuously thereafter until after the death of Houghton, which occurred the following November.The deposit still stands on the books of the bank in the name of W. E. Hawks, and it did not appear that either Houghton or the claimant ever tried to have it transferred or to draw any part of it.

At the time this order was given, Houghton was 78 or 79 years old.He had quite a large property and no relatives living, nearer than nephews and nieces.What his feelings toward them were did not appear.He had known the claimant more than twenty years and thought a great deal of him, both as a man and as a lawyer; referred to him as "My boy," and "My Charlie," and one witness testified that he once said to him "I wish I had a boy like that."During all that time the claimant did such law business (the amount not appearing) as Houghton had to do, gratis.

Considering these facts established, as we must, under this motion, do they tend to show a valid gift inter vivos

To constitute such a gift there must be an intention on the part of the donor to transfer the title to the property to the donee immediately and irrevocably, accompanied by such delivery as will place the donee in complete possession and control of the same, unless delivery is to a third person for the donee, the effect of which we do not need to consider.

While it is true that the courts have relaxed, somewhat, the rigor of the old rule as to delivery, they have never departed from the rule that something more is requisite to constitute a gift than the expression of an intent or purpose to give.The donor must not only signify his purpose to give, but he must deliver.And so essential is delivery as a factor in the transaction that it is said: "Intention cannot supply it; words cannot supply it; actions cannot supply it; it is an indispensable requisite without which the gift fails, regardless of the consequences."The delivery must be made with the intention, on the part of the donor, that title to the subject-matter of the gift shall pass immediately, and it must be so full and complete that, if he resumes control over it without the consent of the donee, he will be answerable in damages as a trespasser.It matters not whether the subject of the gift be a horse, carriage, bond, note, certificate of credit, or bank deposit; both a donative intention and delivery must be clearly established.And the same rule obtains where the subject of the gift is a deposit standing as the deposit in this case would have stood had it been transferred in accordance with the mandate of the order, and where it was made, as in this case, by the direction of the donor with his funds.Cochrane v. Moore, 12 Eng. Rul. Cas. 410(Lord Esher's Opinion);Bean v. Bean, 71 N.H. 538, 53 A. 907;Whalen v. Milholland, 89 Md. 199, 43 A. 45, 44 L.R.A. 208;Colmary v. Fanning, 124 Md. 548, 92 A. 1045;McCullough v. Forrest, 84 N.J.Eq. 101, 92 A. 595;Taylor v. Coriell, 66 N.J.Eq. 262, 57 A. 810;Schippers v. Kempkes, (N. J. Err. & App.1907), 67 A. 74, 12 L.R.A. (N.S.) 355;In re Bolin, 136 N.Y. 177, 32 N.E. 626;Schneider v. Schneider, 122 A.D. 774, 107 N.Y.S. 792;Meyers v. Albert, 76 Wash. 218, 135 P. 1003;Denigan v. San Francisco Savings Bank, 127 Cal. 142, 59 P. 390, 78 Am. St. Rep. 35;Barstow v. Tetlow, 115 Me. 96, 97 A. 829.

The latter case and Trust Company v. Scanlon26 R.I. 228, 58 A. 786, 3 Ann. Cas. 863, are cited in the claimant's brief.The court held in those cases that a depositor of money in his name and the name of another might constitute the latter a joint tenant, by a gift of an interest in the deposit, but they recognize the necessity of a delivery.In the former, a Maine case, the deposit in controversy was in a Rhode Island bank, and the court held that the law of that state governed in the determination of the appellant's claim of title to the fund as the surviving joint tenant of the deposit.The deposit was in the names of "Amanda M. Kent or Ellen J. Tetlow or the survivor of them."Mrs. Kent delivered the deposit book to Mrs. Tetlow soon after the deposit was made, and the latter retained possession of it ever after.In Trust Company v. Scanlon the deposit was in the names...