Nicklas v. Parker

Decision Date10 July 1905
Citation61 A. 267,69 N.J.E. 743
PartiesNICKLAS v. PARKER et al.
CourtNew Jersey Court of Chancery

Action by Augustus J. Nicklas, as administrator of Ellen Cunningham, deceased, against Bridget Parker and others. Decree for complainant.

Collins & Corbin, for complainant. Elmer H. Geran and Henry M. Stevenson, for Bridget Parker and others. Carrick & Wortendyke, for Honora Finerty. Hartshorne, Insley & Leake, for the Provident Institution for Savings in Jersey City.

GARRISON, V. C. Ellen Cunningham, who married a man named Kelly, and thereafter seems to have used indifferently either her maiden or her married name, died on the 13th of January, 1904. Her administrator, the complainant in this suit, found among her effects three passbooks evidencing deposits in the Provident Institution for Savings in Jersey City. One of these passbooks was numbered 115,348, and was in the name of "Ellen Kelly, Trustee for Eliza Clark." Another passbook was numbered 116,443, in the name of "Ellen Cunningham, Trustee for Mary Clark." The third passbook was numbered 93,249, in the name of "Ellen Cunningham, Trustee for Honora Finerty." The administrator filed this bill for the purpose of having the controversy over the ownership of the choses in action evidenced by the books determined. The Provident Institution for Savings filed an answer and cross-bill, and in the latter tendered the money into court for distribution under the order of the court. Issue was joined thereon, and the case is now before the court practically as one of interpleader between the various claimants. The next of kin of Ellen Cunningham (or Kelly) are Bridget Parker, her sister; John Edward Clark, her nephew; Michael, William, Margaret, and Mary Ann Keough, claiming to be her nephews and nieces; and Mrs. Catharine Donnelly, James, Isabella, John. Thomas, and Vincent Donnelly, and Mary Donnelly Ritgert, claiming to be her grandnieces and grandnephews.

Since it appeared at the trial that Eliza Clark, who was named as cestui que trust of the account No. 115,348, was a relative of Ellen Kelly, and had died some 6 1/2 years prior to the opening of the account, no contest was made with respect to her rights therein, and a decree will therefore be made that this account is collectible by the administrator of Ellen Kelly, otherwise Cunningham.

A similar finding, for similar reasons, is made with respect to the account No. 116,443. The Mary Clark named as cestui que trust in this account was also a relative of Ellen Cunningham, and had died many years prior to the opening of this account.

This leaves as the sole chose in action in controversy in this suit that evidenced by passbook No. 93,249, in the name of "Ellen Cunningham, Trustee for Honora Finerty." This account was opened on the 29th of June, 1898, by the deposit of $292. Small deposits were thereafter made, and semiannual calculations of interest were added, so that on the 8th of January, 1903, the deposits and interest amounted to $1,638.98. Ellen Cunningham upon that date withdrew $200, leaving a balance of $1,438.98, to which semiannual additions of interest were added, so that at the date of the filing of the bill there was in this account a balance of $1,492.52. Ellen Cunningham and Honora Finerty were Irish women, and were each domestic servants. They were friends, and intimately acquainted with each other. In 1809 Honora Finerty, through the procurement of Ellen Cunningham, started a bank account with the Provident Institution for Savings, and deposited money in it until she went back to Ireland in 1876. This account stood in her own name, and after her return to Ireland in 1876 she made no further deposits, nor were any other deposits made in this account. At that time there was some $1,200 to her credit, and she empowered Ellen Cunningham to draw from this account. At her request Ellen Cunningham drew the semiannual interest paid by the bank on this account, and forwarded the same to her in Ireland. Subsequently Ellen Cunningham, at the request of Honora Finerty, or with her consent, withdrew the entire balance remaining due Honora Finerty in this account, and transmitted the same to her in Ireland. The account in controversy is not shown to have any connection whatever with the account of Honora Finerty just mentioned. Honora Finerty had no knowledge whatever of this account until after the death of Ellen Cunningham, and the latter never made any declaration to any one concerning the same; and the case is bare of any testimony or evidence respecting it, save that evidenced by the passbook itself. Ellen Cunningham kept this passbook in her own possession, and it was found among her effects at her death, and upon one occasion she made a draft upon this account for her own purposes. Since there was no contractual relation between these women, the account in controversy has no consideration to support it, and must be viewed as a pure gratuity. The allegations in the answer of Honora Finerty which would lead to a conclusion that there was consideration to support this account are not supported by any evidence whatever, and must have been made by counsel under a misapprehension of fact.

This case presents the bald, bare question of the right to a chose in action arising from a deposit of the money of a depositor in a savings bank in the depositor's own name in trust for another. So far as my own research has resulted, and so far as that of counsel has furnished me with data, this is the first case presenting this unqualified question in this state. The right of the person named as cestui que trust to have the fund on deposit must rest upon one of two theories; i. e., that it was a gift inter vivos by the depositor to her, or that it was a valid trust now enforceable by her. In either event the intention must be clearly proven, and such intention must be shown to have been carried into effect by the donor or settlor. The nature and amount of proof required, and the essentials to be proven, are similar with respect to each of the two necessary contentions. The form of the transfer and the time of enjoyment by the beneficiary may be different with respect to a trust, but there must be the same definiteness and clearness of proof of the completed execution of intention in the one case as in the other. It is clear that the depositor in this case did not intend to make a gift inter vivos to Honora Finerty of the money deposited. If she had intended to do this, she would either have deposited the money in the name of Honora Finerty, so that the latter could have drawn it at will, or, if she preferred to put it in the form of a trust, she would have vested Honora Finerty with power to draw immediately, or under conditions which she might specify, from the trust funds. Since, by the retention of the passbook, and the failure to disclose to Honora Finerty the existence of this account, and the failure to vest Honora Finerty with the power to draw upon it, the depositor retained in her own power complete dominion over the chose in action, it must be held that there is not sufficient evidence of a gift inter vivos. "In order to legalize such a gift, there must be not only a donative intention, but also in conjunction with it a complete stripping of the donor of all dominion or control over the thing given." Stevenson v. Earl (Ct. Err. & App., 1903) 65 N. J. Eq. 721, at page 725, 55 Atl. 1091, at page 1093. The...

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    ...still exercises control over the gift. Stevenson v. Earl, 65 N.J.Eq. 721, 55 A. 1091, 103 Am.St.Rep. 790, 1 Ann.Cas. 49; Nicklas v. Parker, 69 N.J. Eq. 743, 61 A. 267 (Court of Chancery) affirmed by the Court of Errors and Appeals, 71 N.J.Eq. 777, 61 A. 267, 71 A. 1135, 14 Ann.Cas. In 1903 ......
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