Murray v. Cannon

• Decision Date: 03 March 1875
• Citation: 41 Md. 466
• Parties: MARY E. MURRAY v. ELIZABETH CANNON, Administratrix of JAMES CANNON.
• Court: Maryland Court of Appeals

41 Md. 466

MARY E. MURRAY v. ELIZABETH CANNON, Administratrix of JAMES CANNON.

Court of Appeals of Maryland

March 3, 1875

APPEAL from the Circuit Court of Baltimore City.

The bill of complaint in this case filed by the appellee, charged that she was the widow of James Cannon, late of Baltimore city, who died intestate in the month of April, 1871, leaving the complainant, his widow, and five surviving children, viz Florence, an infant daughter of the complainant, and four children by a former marriage, viz: Louisa J., the wife of Wm. W. Kone, Mary E., the widow of Oliver P. Murray, James Cannon and Susie Cannon, and a grandson, Louis Arnett; that on the 12th of May, 1871, letters of administration on the estate of the said intestate, were issued to the complainant by the Orphans' Court of Baltimore city; that in the course of her administration she discovered that her intestate had deposited money in the Savings' Bank of Baltimore, to the amount of about $4000, and that it was standing in his name and to his credit at the time of his death; that in some way to the complainant unknown, the book of deposit had been taken possession of by William W. Kone and Louisa, his wife; that the complainant had applied to the bank to pay her the money, but the bank had refused to pay it, unless she should produce the book of deposit; that Kone and wife had refused to give up the book; that thereupon, on the 14th of May, 1871, the complainant applied to the Orphans' Court, by petition, for an order requiring Kone and wife to surrender to the complainant, as administratrix the book of deposit which they had concealed and withheld that in their answer to said petition, filed 22nd of May 1871, they stated that before the filing of said petition they had delivered the book to Mary E. Murray, and they denied that the money deposited in the bank belonged to the intestate's estate, but averred that it had been given by the intestate in his life-time to Mary E. Murray, upon certain trusts; that Mary E. Murray on the 20th of June, 1871, also answered the petition, and averred that Kone and wife had given her the book, and that the money deposited in the bank had been given to her by the intestate in his life-time upon certain trusts. The bill denied that Kone and wife had delivered the book to Mary E. Murray before the petition was filed, and averred that the money belonged to the estate of the said intestate. The bill also alleged that the Orphans' Court dismissed the petition, holding that it had not jurisdiction to determine the question of title to the said property; that the bank still refused to pay the money to the complainant on the claim of Kone and wife, and Mary E. Murray, that they, together with the persons by them mentioned in their answers aforesaid, were the only persons entitled to the same, and the bank could not safely assume to decide upon said inequitable claim. The bill prayed for a decree requiring that the book of deposit should be delivered and the money in the Savings' Bank paid to the complainant, as administratrix of the said intestate. William W. Kone and Louisa, his wife, Mary E. Murray and the Savings' Bank of Baltimore were required to answer. The separate answers of Kone and wife, and Mary E. Murray averred that the book of deposit was given to the latter by her father before his marriage with the complainant, and that at the time the account was opened to the credit of "James Cannon, subject to his order, or to the order of Mary E. Cannon;" that there was some money already entered in the book at the time it was given to Mary E. Murray, and that the intestate gave her that money and such money as might thereafter be credited in the book, in trust, for herself and her brothers and sisters equally; that other money was given to Mary E. Cannon (who intermarried with Oliver P. Murray,) by the intestate, to be deposited in the bank, and that she continued in possession of the book from the time she got it, until her marriage and removal to Portsmouth, Virginia, in the spring of 1862, when, at the request of the intestate, she left the book with Mrs. Kone, the intestate saying, that it would be more convenient to leave it with Mrs. Kone, so that she might deposit such other money as he might give; that while it was in Mrs. Kone's possession, the intestate, from time to time gave her other sums of money for Mrs. Murray, and told her to deposit them in bank and have them credited in the book for her. It was alleged by Mrs. Kone, that she retained possession of the book delivered to her, until she returned it to Mrs. Murray, after the death of the intestate. It was also alleged that the intestate never at any time asked for the return of the book, or claimed the money. Mrs. Murray claimed that she was lawfully entitled to the book of deposit, and to have the money therein credited, amounting, with the credits of interest to April, 1871, to the sum of $3809.54, for the uses and purposes stated by the donor.

The Savings' Bank answered, alleging that it had no knowledge of the facts stated in the bill, except as to the deposit with the bank in the name of James Cannon, and in reference to that, averred that an account stood on their books thus: "James Cannon, subject to his order, or to the order of his daughter, Mary E. Cannon," and that on the 1st of April, 1874, the balance to the credit of that account was $4688.78. The bank assented to such decree as the Court might pass.

A commission was issued to take testimony. Among others, Kone and wife were examined as witnesses, on behalf of the defendants, having previously executed a release and assignment of all their interest in the money to Mrs. Murray. The complainant excepted to their testimony. They filed a petition setting forth the release and assignment, and asking that the bill be dismissed as to them; and an agreement of counsel was filed by which the admissibility of their testimony was to be decided as if it had been given after the action of the Court on their petition. The Court took no action on the petition, but held that Kone and his wife were incompetent to testify for their co-defendants, not being "nominal parties merely" under the Acts of 1864 and 1868. The Court, (PINKNEY, J.,) thereupon passed a decree requiring the Savings' Bank of Baltimore, on the receipt of the proper vouchers, to pay to the complainant as administratrix, the money in bank, to the credit of her intestate.

From this decree the defendant Mary E. Murray, appealed.

The cause was argued before BARTOL, C.J., BRENT, GRASON and MILLER, J.

Charles Marshall and William A. Fisher, for the appellant.

The evidence of Kone and wife was admissible. They were made parties defendant after the complainant had been apprised by the proceedings in the Orphans' Court, that they had returned the book of deposit, which she seeks to recover possession of by this suit, to Mrs. Murray. The allegations of the bill against them are: 1st. That they had not delivered the book to Mrs. Murray. 2nd. That the bank still refused to pay her the money, because of the claim made to it by Kone and wife, and Mrs. Murray.

These allegations are all that the complainant makes to justify making Kone and wife defendants, and these allegations are expressly denied by them. Not a tittle of proof was offered by the complainant to sustain these allegations. If they were not true, or what is the same thing, if they were not proved, Mrs. Murray was the only real defendant (besides the bank,) and the bill should have been dismissed as to Kone and wife, as having no interest in the controversy as to the possession of the book. Their testimony as to the important fact that the intestate never asked or had possession of the book from the time he gave it to Mrs. Murray, was therefore competent.

The release and assignment of Kone and wife to Mrs. Murray, of all their interest in the fund, made them competent. Apart from the Acts of 1864 and 1868, such a release and assignment would remove the objection that the witness is interested, especially if he be not as in this case, liable for costs.

Was the gift of the money by Cannon to his daughter a complete gift intervivos? Apart from the evidence of the Kones, is there proof in the case that the intestate parted with the money in his life-time, so as to make a complete gift? The bill alleges that the complainant had no knowledge of the deposit in the Savings Bank, until after she administered. This fact goes to show that the intestate was not in possession of the book of deposit. The book shows that the money was made subject to the order of James Cannon or of Mary E. Cannon. Mrs. Murray was married in 1861, so that the entry in the book must have been made before her marriage. The form of the credit in the book, made the money payable to either James Cannon or Mary E. Murray. Either could have drawn it under such an entry. Wright vs. Cogswell, 1 McLean, 471; Spaulding vs. Evans, 2 McLean, 139.

But in order to enable either to draw the money, it was absolutely necessary that the person offering to draw it should have the book. Notwithstanding then the joint control over the fund arising from the form of the credit, if the intestate put the book out of his possession, so as to disable himself from drawing the money, he made a complete delivery of the money to Mrs. Murray.

Now does the evidence, apart from that of the Kones, show that James Cannon in his life-time did so deliver the book? or part with the possession of it, as to effectually prevent him from drawing the money? The bill admits that at the death of Cannon, the book was not found in his possession, and that the complainant, his wife, knew nothing of the deposit until after his death. The bill is filed against...