McDonough v. Portland sav. bank

• Decision Date: 10 October 1938
• Citation: McDonough v. Portland sav. bank, 136 Me. 71, 1 A.2d 768 (Me. 1938)
• Parties: Mcdonough v. Portland sav. bank et al.
• Court: Maine Supreme Court

1 A.2d 768

Mcdonough

v. Portland sav. bank et al.

Supreme Judicial Court of Maine.

Oct. 10, 1938.

Appeal from Supreme Judicial Court, Cumberland County, in Equity.

Suit by Michael J. V. McDonough alias Michael V. McDonough, executor under the will of Annie F. McDonough, deceased, against the Portland Savings Bank and another to obtain as an asset of the deceased's estate a deposit in the bank. On appeal from a decree in favor of plaintiff.

Appeal dismissed and decree affirmed.

Argued before DUNN, C. J., and BARNES, THAXTER, HUDSON, and MANSER, JJ.

Arthur D. Welch, of Portland, for plaintiff.

Gould & Shacklcy and Francis W. Sullivan, all of Portland, for defendants.

HUDSON, Justice.

The complainant, executor of the last will and testament of Annie F. McDonough, late of Portland, claims and seeks to obtain as an asset of her estate a deposit in the Portland Savings Bank.

The original account was opened by Miss McDonough on September 24, 1934, when she deposited $142.65. To this she added from time to time so that on April 23, 1936 it amounted to $1,900.31. It is admitted that on that day it was her sole property. For some days prior to April 23, 1936, she had been ill and it became necessary for her to be taken to the Queen's Hospital. She was living in her brother-in-law's home, managed by his daughter, Agatha M. Carey, Miss McDonough's niece. Miss Carey told her aunt that the doctor said that she should go to the hospital in an ambulance rather than by ordinary conveyance because the latter mode might bring fatal results. Miss McDonough said: "If I am that sick, you had better take that bank book that is in the trunk there and have your name put on it." The niece got and took the book to her aunt, who immediately said (according to the testimony of the niece only, testifying without objection): "Take this and if anything happens to me divide that between yourself and Helen—Dorothy won't need it and Frances —doesn't deserve it." Later that day she took the book to the bank and informed an official of what her aunt had said, whereupon she was given an order to be signed by Miss McDonough as authority for transfer of the account. This she gave to Miss McDonough that day in the hospital but it was not signed until morning. Omitting the salutation, it read:

"I hereby authorize and direct you to transfer my deposit in said Portland Savings Bank now represented by book of deposit and account No. 103009 to a new account in the names of Annie F. McDonough and Agatha M. Carey payable to either or to the survivor. The total amount due at any time on the said new account, or any part thereof, may be paid by the said Bank to either of the persons named whether the other be living or not; and the receipt or acquittance of the person so paid shall be a valid and sufficient discharge to the said Bank for any payment so made.

"Annie F. McDonough."

The niece returned the order to the bank immediately. Upon cancellation of the existing account, a new one was opened and a new book issued, entitled, "Portland Savings Bank, Portland, Maine in account with Annie F. McDonough & Agatha M. Carey payable to either or to the survivor." Miss McDonough died May 7, 1936 from coronary thrombosis.

The Justice below sustained the bill, from whose decision Miss Carey appeals.

She claims title by gift causa mortis. Whether the alleged gift was made in contemplation and expectation of death need not now be determined, for the case may be disposed of on another ground.

Gifts causa mortis "are not to be favored, as they conflict with the general policy of the law relating to the disposition of the estates of deceased persons." Parcher, Adm'r, v. Saco & Biddeford Savings Institution, 78 Me. 470, 473, 7 A. 266; also see Drew, Adm'r, v. Hagerty et al., 81 Me. 231, 243, 17 A. 63, 3 L.R.A. 230, 10 Am.St.Rep. 255; Farnsworth, Adm'r v. Whiting et al, 106 Me. 430, 433, 76 A. 909; Hatch v. Atkinson et al, 56 Me. 324, 326, 96 Am.Dec. 464.

As in gifts inter vivos, so in gifts causa mortis, it must appear that the donor intends to and does in fact surrender absolutely all present and future dominion and control over the property, "subject in case of a gift causa mortis to revocation during the lifetime and conditioned upon the death of the donor." Maine Savings Bank v. Welch et al, 121 Me. 49, 53, 115 A. 545, 546; Farnsworth v. Whiting, supra, pages 430, 433; Dole v. Lincoln, 31 Me. 422, 429.

This Court (truly, of gifts inter vivos but equally applicable to gifts causa mortis) has recently said:

"Delivery to the donee is not enough unless accompanied with an intent to surrender all present and future dominion over the property. * * * When one's intention is to retain the right to use so much of a bank account as he desires during his life, and that the balance upon his decease shall become the property of the donee (although there may be a delivery of the bank book to the donee), no valid gift inter vivos is made. Such is in the nature of a testamentary disposition of property and is legally inoperative because contrary to the statute of wills." Rose, Adm'x, v. Osborne Jr., 133 Me. 497, 501, 180 A. 315, 317.

Also see Maine Savings Bank v. Welch, supra, page 53, 115 A. 545; Howard, Adm'r, v. Dingley et al, 122 Me. 5, 10, 118 A. 592.

In order to make a valid gift causa mortis there must be a clear and intelligent manifestation of an intention to make a present gift and the required intention must be definite and certain. 28 C.J, Sec. 99, pages 687, 688; 12 R.C.L, Sec. 33, page 957.

The delivery necessary to create such a gift "must be such that the donor parts with all present control and dominion over it." 12 R.C.L, Sec. 34, page 959.

It is stated that "in order to be effectual a gift must be fully executed, for the reason that, there being no consideration there for, no action will lie to enforce it. If anything remains to be done the transaction is a mere executory agreement to give, and the title does not pass." 28 C.J, Sec. 20, page 629.

Title passes upon delivery, for then it is the intention to give culminates in a completed gift. Before but not after an unconditional delivery, the subject matter of the gift is wholly within the control of the donor.

Also, as said in Drew, Adm'r, v. Hagerty et al, 81 Me. 231, 242, 17 A. 63, 64, 3 L.R.A. 230, 10 Am.St.Rep. 255:

"It [meaning delivery] is a test of sincerity and distinguishes idle talk from serious purposes; and it makes fraud and perjury more difficult. Mere words are easily misrepresented."

Did Miss McDonough deliver the book to the niece with an intention to surrender all present and future control and dominion over the account it evidenced? This was a question of fact for determination in the first instance by the Justice below. He found she did not. That finding must stand unless clearly wrong. Young v. Witham, 75 Me. 536; Sposedo, in Equity, v. Merriman et al. 111 Me. 530, 538, 90 A. 387; Goodale v. Wilson et al, 134 Me. 358, 360, 186 A. 876.

The burden to prove the gift causa mortis rested on the niece. Dunbar, Adm'r, v. Dunbar, 80 Me. 152, 153, 13 A. 578, 6 Am.St.Rep. 166; Staples, Adm'r, v. Berry, Adm'r, et al.; 110 Me. 32, 35, 85 A. 303.

To perform that burden it was her duty to produce evidence, clear and convincing. Staples v. Berry, supra, page 35, 85 A. 303; Farnsworth, Adm'x, v. Whiting et al, supra, pages 434, 435, 76 A. 909.

The record sufficiently supports the finding of the single Justice. The niece herself testified that she understood her aunt's name was to remain on the book as long as she lived, that at no time did she ask to have it taken off, and that had her aunt asked her to take her name off that she would have done so. Furthermore, she confirmed testimony that she had previously given in the Probate Court that if her aunt had wanted some money on the account before she died, she could have drawn it. When on cross examination she was asked if she claimed that this was a gift to her to take place then, she answered, "No."

When Miss McDonough signed the order to the bank on April 24th, giving it authority to make the transfer, she had kept it over night and in reading it must have noted its express provision, permitting the bank to pay the new account either to her or her niece. If, when she let her take the book to have her name put on it, she had relinquished all rights to the account therein (except that of complete revocation inherent to a gift causa mortis), it would be strange indeed that on the following day she would have signed an order whereby she could withdraw all or part of it.

Analyzed, construed and consolidated, what the aunt said to her niece on April 23rd was this in effect,—Take this book, have your name put on it with mine, keep it and if anything happens to me divide the account between yourself and your sister. Then there was no expectation that a new account would be opened and a new book be issued. No...