Leitch v. Diamond Nat. Bank of Pittsburgh
| Decision Date | 05 February 1912 |
| Docket Number | 234 |
| Parties | Leitch v. Diamond National Bank of Pittsburgh, Appellant |
| Court | Pennsylvania Supreme Court |
Argued November 3, 1911
Appeal, No. 234, Oct. T., 1911, by defendants from decree of C.P. No. 2, Allegheny Co., Jan. T., 1910, No. 445, on bill in equity in case of Robert H. Leitch, Executor of the Estate of Isabella Arnold, deceased, v. Diamond National Bank of Pittsburgh, et al. Affirmed.
This was a bill in equity filed by Robert H. Leitch, executor of the estate of Isabella Arnold, deceased, against The Diamond National Bank of Pittsburgh, Pa., Robert J. Cleland, William C. Cleland, Thomas A. Cleland, James T. Arnold, and Robert J Cleland, attorney in fact for James T. Arnold. The purpose of the bill was to obtain possession of certain bonds which at the time of the death of Mrs. Arnold were in the safe deposit vaults of the bank. It was alleged that these bonds were the property of Isabella Arnold, having been given to her by her husband, James T. Arnold. The material facts as found by the trial judge, are as follows:
James T. Arnold and Isabella Arnold were husband and wife. They resided in Allegheny City and in 1906 he was 81 years of age and she was 68. They had no children and the husband's next of kin were three nephews, Robert J., William C., and Thomas A. Cleland. James T. Arnold was a man of wealth, which was made up of bonds, stocks, other securities and real estate, while his wife, prior to May, 1906, had practically no property. He had three safe deposit boxes in The Diamond National Bank of Pittsburgh, numbered 125, 158 and 159, in which he kept his various securities and title papers. Previous to May, 1906, his wife had joint access with him to box 159.
In May 1906, Mr. Arnold called at the office of Robert H. Leitch, a young lawyer, whose mother had been his lifelong friend, but who had previously rendered no legal services to either himself or his wife, and requested Mr. Leitch to accompany him to the bank. They went into the vault, where Mr. Arnold unlocked the three boxes, removed therefrom a part of the contents, which he placed on the table. He then told Mr Leitch that he was going to give Mrs. Arnold all his negotiable bonds and would put them in a box which he then and there designated as hers. He then took certain securities from box 159, in which he said some of the bonds were, and threw them into box 158. In June, 1906, he said that he had placed all his negotiable bonds in Mrs. Arnold's box, 158, and that they were hers. In July, 1906, he requested Mr. Leitch to call at his house to prepare a will for Mrs. Arnold, whereby she was to dispose of the bonds he had given to her to various charitable institutions, and at the same time to draw a will for him. Mr. Leitch called as requested and Mrs. Arnold, in the presence of her husband and with a view to making her will, said that he had given her bonds then amounting to $110,000, and that he would give her other bonds that he would thereafter buy from time to time. Mrs. Arnold showed a list of charities showing specific bequests intended, which amounted to $90,000, with a balance of $20,000 to be given to the Woman's Board, and providing for payment of the collateral inheritance tax. At the same time Mr. Arnold produced a list of securities and said that the items marked "B" were the bonds owned by Mrs. Arnold and that the unchecked items on the list were stocks and memoranda that he wanted in his will. It was suggested by Mrs. Arnold and agreed to by Mr. Arnold, after some slight protest, that, owing to his kindness in giving her the bonds and as a mark of gratitude, he should receive the interest on them during his life, and should have the right to enter her box, examine the bonds and cut off the coupons. He accepted the gift of the income and thereafter took and used the same, up to the time of his wife's death.
At the same time Mr. Arnold, in the presence of his wife, directed Mr. Leitch to prepare deeds for the conveyance of his real estate to the three Clelands, his nephews and next of kin, and a will by which he would dispose of his stocks and other securities. The deeds were prepared and executed.
Mrs. Arnold subsequently stated to Mr. Leitch in the presence of her husband that he had set apart a box for her, that all the bonds he had given her from time to time were in that box, that she had keys for all the boxes just as he had, which were in a desk which she pointed out, and that she could go to the boxes whenever she desired. Mr. Leitch suggested that she place all her bonds in a box in her own name, but she declined to do this because she had given her husband back the income for life, and she wanted him to go to the bank, see the bonds and remove the coupons, as he had done before.
On July 19, 1906, both Mr. and Mrs. Arnold executed wills drawn up in accordance with their previous instructions. The wills bore the same date and were executed simultaneously. Both were read and examined by them, and each knew the contents of the other's, Mr. Arnold witnessed his wife's will and she witnessed his. Mr. Leitch and the three Clelands were executors of the husband's will and Mr. Leitch alone of the wife's.
By Mrs. Arnold's will her husband was to receive, while he lived, all the interest and income from "all my money and bonds of which I may die possessed," and the principal was given to religious and charitable institutions, two of the legacies of $10,000 each being subject to life estates in persons named. The specific legacies given in the will amounted to $90,000.
Mr. Arnold's will contained the following clause: "Having in other ways made full and ample provision for my beloved wife, Isabella Arnold, by turning over to her absolutely a certain portion of my property, I do not by this will give her anything more, as her acceptance of said portion of my property was and is to be taken as a full release of her dower rights under this will." He made specific bequests, aggregating $50,000, to various persons and institutions, and gave the residue of his estate to his three nephews.
Mr. Arnold afterwards stated to several witnesses that he had given bonds to his wife and that bonds which he subsequently bought were for his wife.
On January 4, 1906, Mr. Arnold executed papers constituting Robert J. Cleland his attorney in fact, and in effect transferring all his securities to the three Clelands, retaining, however, a life interest in himself. On the same day he added a codicil to his will, by which he gave his wife all his estate, except the real estate which he had conveyed to the Clelands, and named her as executrix. On May 18, 1909, he executed a further power of attorney to Robert J. Cleland.
On May 27, 1909, Mrs. Arnold executed another will to the same effect as the former one, except that she now made specific bequests to religious and charitable institutions, amounting to $196,000. Her husband took no part in the preparation of the latter will and there is no evidence that he had any knowledge of its contents or execution. Mr. Leitch was again named as executor.
Between July, 1906, and January, 1908, Mr. Arnold purchased $30,000 worth of bonds, which were placed in box 158. He gave Mrs. Arnold, in May, 1906, keys for each of the boxes, retaining duplicate keys for himself. At the time of Mrs. Arnold's death, November, 1910, there were in box 158, bonds aggregating in value $203,500. On December 30, 1909, on application of Robert J. Cleland, James T. Arnold was adjudged by reason of age and mental and physical infirmities, to be incapable of managing his affairs and Cleland was appointed his guardian.
The trial judge also found that when Leitch went to the bank with Mr. Arnold in May, 1906, he was neither employed as counsel by him nor was he acting as his counsel. The relation of counsel did not begin until about July, 1906, and he then became counsel at the same time for both Mr. and Mrs. Arnold, concerning the same subject matter in which both were equally interested. His testimony relates throughout either to what took place in the presence of both Mr. and Mrs. Arnold, or to matters in which they were mutually concerned and about which he was employed by both. He represented no opposing interests, while acting for both clients but was employed to put in legal form certain matters about which they were mutually agreed.
The court below held that there was a valid executed gift of the bonds in box 158, by James T. Arnold to his wife, and the defendants were enjoined from selling, transferring or delivering any of the bonds to any person other than plaintiff or from interfering with plaintiff's possession of the same.
Error assigned was the decree of the court.
The assignments of error are dismissed, and the decree of the court below is affirmed.
D. T. Watson and Wm. M. Hall, for appellants. -- The declarations of an alleged donor are admissible only when they accompany the act of delivery, and then only for the purpose of showing the intent of such delivery and not the fact of delivery itself: Scott v. Berkshire County Savings Bank, 140 Mass. 157 (2 N.E. Repr. 925); Chambers v. McCreery, 106 Fed. Repr. 364.
No valid delivery, actual or constructive, takes place if the donor retains control or possession or power of disposal over the subject of the gift: Walsh's App., 122 Pa. 177; Fross' App., 105 Pa. 258; Allen-West Commission Co. v. Grumbles, 129 Fed. Repr. 287; Chambers v. McCreery, 106 Fed. Repr. 364; Bauerschmidt's Estate, 97 Md. 35 (54 A. Repr. 637); Millard v. Millard, 221 Ill. 86 (77 N.E. Repr. 595); Young v. Young, 80 N.Y. 422.
Delivery of key was insufficient: Tompkins v. Leary, 134 A.D 114 (118 N.Y.S. 810); Keepers v. Fid. Title & Dep. Co., 56 N.J. Law 302 (28...
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