Rose v. Osborne

• Decision Date: 26 July 1935
• Citation: 180 A. 315
• Parties: ROSE v. OSBORNE.
• Court: Maine Supreme Court

180 A. 315

ROSE

v. OSBORNE.

Supreme Judicial Court of Maine.

July 26, 1935.

Appeal and Exceptions from Superior Court, Androscoggin County, in equity.

Suit in equity by Annie Laura Rose, administratrix of the estate of Jacob W. Silliker, deceased, against George Osborne. From a decree, plaintiff appeals and defendant excepts to holdings of law therein.

Decree in accordance with opinion.

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

Berman & Berman, of Lewiston, for plaintiff.

Ralph W. Crockett, of Lewiston, for defendant.

HUDSON, Justice.

On appeal by plaintiff from decision of justice of the superior court in equity and on exceptions by defendant to holdings of law in his final decree.

The plaintiff seeks to recover the proceeds of three savings accounts opened by Jacob W. Silliker, now deceased, in three different banks, to wit: (1) Account No. 56623 in the Androscoggin County Savings Bank of Lewiston, Me., amount $5,481.18; (2) account No. 122933 in Savings Bank of New London, Conn., amount $5,370.72; and (3) account No. 25798 in Mariners Savings Bank, also of New London, amount $7,301.72, aggregating $18,153.62. The justice found for the plaintiff as to the first account, but for the defendant as to the other two.

A matter of equity practice requires first consideration. An answer under oath having been called for and given, the defense contends it is evidence of the facts therein stated and must be taken as true unless outweighed by a preponderance of evidence.

Whitehouse's Equity Practice, § 390, page 418, is quoted as follows:

"When a cause goes to hearing on bill, answer and replication, it is a rule in general chancery practice, when the answer is under oath, that such parts of the answer as are responsive to the bill are evidence equal to the testimony of one credible witness and are therefore to be taken as true unless outweighed by a preponderance of evidence. * * *"

The quotation thus stops, but Mr. Whitehouse also stated:

"* * * The preponderance of evidence required by the rule is a preponderance of any kind of legal evidence such as two credible witnesses or one witness and corroborating circumstances or even circumstances or documents alone. Any evidence, no matter what it may be, is sufficient if it outweighs the answer and in determining the weight of such evidence any fact may be taken into consideration which has a bearing upon the question. Thus an answer may so contradict itself as to deprive it of all weight."

In Gould v. Williamson, 21 Me. 273. the court stated:

"This evidence, however, may in this, as in other cases, be by way of inference from circumstances, which are sometimes more convincing than direct testimony."

The correct rule is that while facts stated in an answer under oath, when responsive to the bill, are evidence, yet they do not control the decision, if other facts and circumstances, appearing either orally or as written evidence, or as reasonable inferences from facts proven, outweigh the facts stated in the answer.

The determination of the ownership of these bank accounts involves law many times by this court considered and declared as to what constitutes valid gifts inter vivos and by a voluntary trust. It is claimed that there were gifts inter vivos of the accounts in the Androscoggin County Savings Bank and the Mariners Savings Bank and a voluntary trust of that in the Savings Bank of New London.

The law as to gifts inter vivos is well established in this state. Allen, Adm'r, v. Polereczky, 31 Me. 338; Dole v. Lincoln, 31 Me. 422; Northrop v. Hale, 73 Me. 66; Drew v. Hagerty, 81 Me. 231, 17 A. 63, 3 L. R. A. 230, 10 Am. St. Rep. 255; Augusta Savings Bank v. Fogg, Ex'r, et al., 82 Me. 538, 20 A. 92; Norway Savings Bank v. Merriam et al., 88 Me. 146, 33 A. 840; Fairfield Savings Bank v. Small, 90 Me. 546, 38 A. 551; Getchell v. Biddeford Savings Bank, 94 Me. 452, 47 A. 895, 80 Am. St. Rep. 408; Hallowell Savings Institution v. Titcomb, Ex'r, et al., 96 Me. 62, 51 A. 249; Brown v. Crafts, 98 Me. 40, 56 A. 213; Staples v. Berry, 110 Me. 32, 85 A. 303; Barstow et al. v. Tetlow, Aplt., 115 Me. 96, 97 A. 829; Maine Savings Bank, In Equity, v. Welch et al., 121 Me. 49, 115 A. 545; Howard, Adm'r, v. Dingley et al., 122 Me. 5, 118 A. 592; Garland, Appellant, 126 Me. 84, 136 A. 459; Portland National Bank v. Brooks et al., 126 Me. 251, 137 A 641; Saco & Biddeford Savings Institution v. Johnston, Adm'r, et al., 133 Me. 445, 180 A. 322. Likewise as to gifts by declaration in trust. Northwestern Mutual Life Ins. Co. v. Collamore et al., 100 Me. 578, 62 A. 652; Bath Savings Institution v. Fogg et al., 101 Me. 188, 63 A. 731; Cazallis v. Ingraham, 119 Me. 240, 110 A. 359; Springvale National Bank v. Ward et al., 122 Me. 227, 119 A. 529.

An epitome of these decisions as to gifts inter vivos is:

"To constitute a valid gift inter vivos, the giver must part with all present and future dominion over the property given. He cannot give it, and at the same time retain the ownership of it. There must be a delivery to the donee or to some one for the donee; and the gift must be absolute and irrevocable, without any reference to its taking effect at some future period." Norway Savings Bank v. Merriam et al., supra, 88 Me. 146, on page 149, 33 A. 840, 841.

Delivery to the donee is not enough unless accompanied with an intent to surrender all present and future dominion over the property. The burden to prove the gift is on the donee. 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.

With relation to a voluntary trust, there is in such, a gift of the equitable rather than of the legal interest therein. While delivery is a sine qua non in a gift inter vivos, yet not so in a voluntary trust where the property already is in the possession of the cestui que trust.

"The only important difference between a gift and a voluntary trust is that in the one case the whole title, legal as well as equitable,—the thing itself,—passes to the donee, while in the other the actual, beneficial, or equitable title passes to the cestui que trust, while the legal title is transferred to a third person, or is retained by the person creating it, to hold for the purposes of the trust. But a gift of the equitable or beneficial title must be as complete and effectual in the case of a trust, as is the gift of the thing itself in a gift inter vivos. 'It is just as essential, to establish the trust sought to be set up here, to prove some act on the part of the donor that shall operate to pass the equitable title to the donee, as it is to prove delivery in a gift inter vivos.' Bath Savings Institution v. Hathorn, 88 Me. 122, 33 A. 836 [32 L. R. A. 377, 51 Am. St. Rep. 382]." Norway Savings Bank v. Merriam et al., supra, on page 88 Me. 146, 150, 33 A. 840, 841.

A voluntary trust in personal property may be created by parol. To constitute such a trust, it must be perfected and completed; executed, not executory. The passing of the complete equitable title need not be proven by an express statement by the settlor that he declares himself trustee, but he must at least do something equivalent to it and use expressions which have that meaning. There must be convincing proof that the fiduciary relation is completely established. Norway Savings Bank v. Merriam, supra. The entry on a deposit book is not conclusive evidence of an absolute gift of an equitable interest and evidence is admissible to show the intention of the donor and to control the effect of the entry. The material inquiry is as to the donor's actual intention. Springvale National Bank v. Ward et al., 122 Me. 227, 119 A. 529. Where the word "trustee" appears on a bank book, indicating that it is a trust fund, there is raised the presumption that an irrevocable trust was intended and is sufficient proof of it in the absence of other controlling proof. Springvale National Bank v. Ward et al., supra, 122 Me. 227, on page 229, 119 A. 529.

"The crucial question where a voluntary trust in the settlor is sought to be established is whether the declaration on which such a trust is sought to be predicated is sufficient. There is no prescribed form for the declaration of a trust; whatever evinces the intention of the party that the property of which he is the legal owner shall beneficially be another's is sufficient. The intention must be plainly manifest, and not derived from loose and equivocal expressions of parties, made at different times and upon different occasions; but any words which indicate with sufficient certainty a purpose to create a trust will be effective in so doing." 26 R. C. L. § 19, pp. 1182 and 1183.

While the law seems to be well settled in this state, difficulty often arises in its application to the facts in a given case. So now, because of differing facts, we are constrained to deal separately with these accounts.

Account No. 56623 in Androscoggin County Savings Bank.

This account, opened by the deceased in his own name on December 23, 1924, so remained until April 23, 1925, when he signed this memorandum, to wit:

"I, Jacob W. Silliker, having opened with the Androscoggin County Savings Bank an Account No. 56623, now request said Bank to add the name of George H. Osborne, Jr., to my bank book No. 56623, making my said account as follows: a joint deposit account No. 56623 in the names of Jacob W. Silliker and George H. Osborne, Jr. payable to either or the survivor, and I hereby certify that each of the above named persons has a present bona fide legal interest in such account and that such account is not made a joint...