McGillivray v. First Nat. Bank of Dickinson, 5273.
| Decision Date | 30 November 1927 |
| Docket Number | No. 5273.,5273. |
| Citation | 217 N.W. 150,56 N.D. 152 |
| Parties | McGILLIVRAY v. FIRST NAT. BANK OF DICKINSON (MONTAGUE, Intervener). |
| Court | North Dakota Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
To constitute a gift there must be a delivery to the donee.
Whether or not a person who has indicated an intention to bestow upon another property of which he retains possession and control becomes a trustee for such other party is primarily a question of intention.
An owner may by his own voluntary declaration create a trust of his property for the benefit of a third person without a change of possession and without any consideration.
A trust will not be inferred from the mere failure of a given transaction to operate as a completed gift, but must rest upon substantial proof tending affirmatively to establish an intention to create a trust.
Acts and declarations of an owner of property showing an intention to bestow the same upon third parties upon the death of the owner are consistent with a testamentary intention rather than a desire to create a present trust.
The failure of a document to operate as a will, if it does so fail, could not add materially to its force as evidence of a trust.
Where an owner has indicated a desire to bestow property upon others but has retained an absolute power of disposition during life, and has indicated that the beneficiaries are to take only upon her death, such intended disposition is testamentary in character and can be rendered effective only by compliance with the statute of wills.
An estate in joint tenancy in a credit resulting from a bank deposit is not created by inserting a donee's name in a certificate of deposit as a joint payee, where full control of the certificate and of the deposit is retained by the depositor.
A contract between a bank and a depositor, whereby the bank agrees to pay the amount of the deposit to the depositor or, upon the death of the depositor, to another is not a contract made expressly for the benefit of a third person, within section 5841 of the Compiled Laws of 1913.
A bank having knowledge that a depositor intends that the amount of a certain deposit shall be distributed upon the death of the depositor to a certain beneficiary, or beneficiaries, one of whom is made joint payee of a certificate of deposit, remains a debtor and does not become a trustee for the benefit of such third party or parties.
Additional Syllabus by Editorial Staff.
Where depositor in bank had certificates of deposit renewed payable to herself or M. and placed memorandum signed by herself in safety deposit box in envelope addressed to vice president of bank and M., listing beneficiaries among whom deposit was to be distributed, there was no gift in view of death, within Comp. Laws 1913, § 5541.
Comp. Laws 1913, § 5364, relating to trusts in land, contains obvious misprint; statute being correctly printed in Rev. Codes 1905, § 4821.
Appeal from District Court, Stark County; Thomas H. Pugh, Judge.
Action by Hugh McGillivray, administrator of the estate of Mary J. McGillivray Street, deceased, against the First National Bank of Dickinson in which H. E. Montague intervened. From a judgment for plaintiff, the intervener appeals. Affirmed.
See, also, 217 N. W. 159.Newton, Dullam & Young, of Bismarck, and Simpson & Mackoff, of Dickinson, for appellant.
Crawford, Cain & Burnett, of Dickinson, for respondent.
L. R. Baird, of Dickinson, for defendant.
Mary J. McGillivray Street died in the year 1924, at the age of 75 years, and left surviving her second husband, to whom she had been married approximately 2 years; also, a sister, and other relatives farther removed. Her death was the result of an automobile accident. For a number of years prior to her death she had money on deposit in the First National Bank of Dickinson, the original deposits representing the proceeds of the sale of ranch property left her by her first husband. The deposits accumulated and were evidenced by certificates issued and renewed from time to time. At the time of her death there were five such certificates, amounting, without interest, to $48,500. The last renewal of these certificates had taken place in September, 1923, at which time she indicated to the cashier of the bank her desire to renew them in such a way as to make them payable to herself or H. E. Montague. They were renewed in this form and placed in her safety deposit box in the vault of the bank. After her death the certificates were found in the box, and there was also found a memorandum inclosed in an unsealed envelope. On the address side of the envelope was written, “For R. H. Johnson and Claud Montague.” The inclosed memorandum is as follows:
+--------------------------------------------+
¦Money in Bank to be Disposed of. ¦
+--------------------------------------------¦
¦H. E. Montague ¦$10,000¦
+------------------------------------+-------¦
¦Maria Wheat ¦10,000 ¦
+------------------------------------+-------¦
¦Willetta McGlashan ¦3,000 ¦
+------------------------------------+-------¦
¦Marian McGlashan ¦3,000 ¦
+------------------------------------+-------¦
¦William Wheat ¦2,000 ¦
+------------------------------------+-------¦
¦Charles Wheat ¦2,000 ¦
+------------------------------------+-------¦
¦Fred Wheat ¦2,000 ¦
+------------------------------------+-------¦
¦Watson Wheat ¦2,000 ¦
+------------------------------------+-------¦
¦Florence Griffith ¦2,000 ¦
+------------------------------------+-------¦
¦Mary Jane Griffith ¦1,500 ¦
+------------------------------------+-------¦
¦Richard Griffith, Junior ¦1,000 ¦
+------------------------------------+-------¦
¦Norman Montague ¦3,000 ¦
+------------------------------------+-------¦
¦Richard Montague ¦2,000 ¦
+------------------------------------+-------¦
¦Hamilton Montague ¦2,000 ¦
+------------------------------------+-------¦
¦Mary Currier ¦1,000 ¦
+------------------------------------+-------¦
¦Donald Montague and Donald the Ranch¦2,000 ¦
+--------------------------------------------¦
¦Mary J. McGillivray Street. ¦
+--------------------------------------------¦
¦Oct., 1923. ¦ ¦
+--------------------------------------------+
Hugh McGillivray was appointed administrator of the estate of Mary J. McGillivray Street, deceased, and brought action against the bank upon the certificates of deposit. The bank answered, admitting its indebtedness, but alleging the above facts with regard to the memorandum, and asking that the court determine whether or not the administrator was entitled to recover the proceeds, or whether the same should be paid in accordance with the direction contained in the memorandum. It asked to be permitted to deposit the money in court for the benefit of the parties entitled.
H. E. Montague filed a complaint in intervention, pleading the execution of the certificates and alleging that he was the fully appointed, qualified, and acting trustee for the benefit of himself and the other beneficiaries named in the memorandum. He prayed judgment against both the plaintiff and the defendant, requiring the delivery of the certificates to the intervener and their payment to him. From a judgment of dismissal entered against the intervener and a judgment in favor of the administrator against the bank, the intervener appeals.
The evidence, aside from the documents referred to above, is substantially as follows: R. H. Johnson, cashier of the defendant bank, testified that prior to the last renewal of the certificates they had been payable to Mary J. McGillivray Street; that at the time the last renewals were made, at the direction of the deceased, he made them payable to the deceased or to H. E. Montague; that he was not shown the memorandum at such time and never saw it until after the death of Mrs. Street when the safety deposit box was opened; and that at the time they were drawn up she made no statement that he could remember definitely. He describes the transaction in this manner:
’
He could remember no explanation of the change. The witness remembered that the deceased at one time came to his home and said that she was going to take care of Mr. Montague when she died-that was during the last year of her life-and that he understood it was her intention to have them payable to Mr. Montague in case of her death. The deceased did not discuss her business freely with the witness and was quite secretive about all her business matters.
The county judge testified that, after the death of the deceased and at the request of heirs and parties interested in the estate, he went to the First National Bank to examine the contents of the safety deposit box. A seal had previously been placed over the box. He opened it and found the certificates of deposit in question in an envelope in the box. He also found the memorandum. They were not included in the same envelope. He did not remember whether the memorandum was found next to the certificates of deposit.
H. E. Montague testified that the deceased had been a frequent visitor in his home and lived at his home “off and on.” He lived in San Diego, Cal., and it had been the custom of the deceased for a number of years to spend the winter months in California. The deceasedowned property in San Diego which was...
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