Sayre v. Weil

• Decision Date: 27 January 1892
• Citation: 10 So. 546,94 Ala. 466
• Parties: SAYRE ET AL. v. WEIL.
• Court: Alabama Supreme Court

10 So. 546

94 Ala. 466

SAYRE ET AL. v. WEIL.

Supreme Court of Alabama

January 27, 1892

Appeal from city court of Montgomery; THOMAS M. ARRINGTON, Judge.

Action by H. A. Sayre and others, assignees of Moses Bros., against David Weil, to recover on a note. Judgment for defendant. Plaintiffs appeal. Affirmed.

The evidence introduced showed, among other things, that prior to July 3, 1891, the defendant deposited in the banking-house of Moses Bros., of which firm the plaintiffs are the assignees to the credit of "D. Weil, trustee for Goldman children," the sum of $1,038.42, which money was still on deposit on said 3d day of July, 1891; that there was also on deposit with the said firm on July 3, 1891, to the credit of Rosina Weil, who was the wife of the defendant, the sum of $1,668.78, which had been placed in the said bank by the defendant; that no one drew checks on the account of Rosina Weil except the defendant, and he had frequently drawn on this account in the name of Rosina Weil, or in his name for her, with her knowledge and consent, and with the consent of Moses Bros. It was further shown that on February 7, 1891 the defendant was indebted to Moses Bros. in the sum of $2,000; that on that day he paid the said indebtedness by executing the note here sued on, and transferring from the account of Rosina Weil enough money to pay the balance of the said debt; that on the 3d day of July, 1891, the defendant and Moses Bros., through H. C. Moses, a member of said firm agreed that the note here sued on, which was payable four months after date, should be paid by applying to its payment the $1,038.42 deposited to the credit of "D. Weil trustee for Goldman children," and that the balance on said note, after deducting said amount, should be charged to the account of Rosina Weil, and the whole note thus be paid. It was also further proved that Rosina Weil afterwards ratified this agreement. All the other necessary facts are sufficiently stated in the opinion. The cause was tried, by agreement, by the judge of the city court without the intervention of a jury, and, upon the introduction of all the evidence, he held that the said agreement between defendant and Moses Bros. was valid and binding, and rendered judgment for defendant.

Tompkins & Troy and Horace Stringfellow, for appellants.

Watts & Son, for appellee.

COLEMAN J.

By written agreement of the parties, filed as provided in section 2743 of the Code, the case was tried and determined by the court without the intervention of a jury. Under the following section, (2744,) the finding of the court may be general or special, unless the parties, or either of them, in writing, request a special finding of the facts; and, if a special finding is requested, the court must state, in writing, the facts as it finds them; and such statement, with the judgment of the court, must be entered on the minutes. Construing sections 2744 and 2745 together, we hold that whenever there is a special finding by the court, whether performed in the exercise of its discretion, or upon written request of the parties, or either of them, on appeal it is the duty of this court to examine and determine whether the facts are sufficient to support the judgment. Quillman v. Gurley, 85 Ala. 594, 5 South. Rep. 345; Betancourt v. Eberlisn, 71 Ala. 464. The first legal proposition for consideration is the one which arises in regard to the deposit for the Goldman children. The defendant Weil testifies as follows: "I had another account with Moses Bros.: 'D. Weil, trustee for the Goldman children. There was $1,038.42 to the credit of that account on the 3d day of July, 1891. I had deposited the money there, from time to time, for my grandchildren, the Goldman children, ever since they were born,-for the last ten or fifteen years. I put it there as a gift to them every week, so when they grew up they would have something to fall back upon." The same principles of law as to gifts inter vivos apply in cases of gifts of money deposited in bank as to other personal property. The donor must part with all dominion over the thing given. There must be a delivery, or something equivalent thereto. If anything remains to be done to perfect the gift, if there be a reservation of the use or enjoyment of the thing, it is not a valid, executed gift. Walker v. Crews, 73 Ala. 417. A donor may constitute himself a trustee for the donee upon a mere voluntary consideration, and, in case of personal property, this may be done by parol. If by language clear and unmistakable, whatever may be the form of expression, a trust is created, as distinguished from a mere intention to create; if nothing remains to be done to perfect the trust, although there is no valuable consideration,-courts of equity will uphold and enforce the trust in the interest of the beneficiary. 1 Perry, Trusts,§§ 96-98; 8 Amer. & Eng. Enc. Law, p. 1323; Gerrish v. Institution, 128 Mass. 160. These general principles are almost universally conceded. The difficulty arises in their application to the varying facts of particular cases, in determining whether, in the case of a gift, it has been perfected, and, in the case of a trust, whether it has been perfectly created. We have examined many authorities upon the question at issue, and it would seem, in some of the authorities, that the same rule has been differently applied to a similar state of facts; but in each case the general rule as we have stated it has been recognized as the correct rule. In Nutt v. Morse, 142 Mass. 1, 6 N.E. 763, Calvin Morse made deposits as follows: "Book 3,006, $1,000, Calvin Morse, in trust for Rus Morse. Book 3,007, $1,000, Calvin Morse, in trust for Edgar S. Hays;" and similar deposits were made for other persons, brothers and sisters of the depositor. The court held that upon the facts it was clear that there was no perfected gift to either of the claimants. The court uses the following language: "Calvin Morse retained the entire dominion and control of the funds, both principal and interest, during his life, and the facts show conclusively that he intended no title to or interest in the funds should pass to the several claimants until after his death. The transaction was intended to be in the nature of a testamentary disposition, and was an attempted evasion of the statute of wills,"-citing Sherman v. Bank, 138 Mass. 581. The statement of the evidence in the case cited shows that the depositor informed the claimants that he controlled the fund while he lived, but it was theirs after he died; that, in fact, he did draw and use the accumulations of interest, and, the night before he died, said to them, "When I am gone, you take these books, and transfer the money to your names, and say nothing to nobody about it." It further appears that Calvin Morse, the depositor, knew, at the time he made the deposits, that he could not draw interest on any sum deposited in his own name over $1,000; and we infer the court found in this case, as is declared in other cases of the same state, that to avoid the effect of the statute, which forbade the payment of interest on sums exceeding $1,000, the depositor deposited money in the name of other persons.

It will be further seen, by an examination of the facts in the case in 138 Mass. 581, supra, that by a by-law of the bank money deposited "should be drawn out only by the depositor, or some person by him legally authorized, and that no payment should be made to any person without the production of the pass-book." In the case cited from 142 Mass., 6 N.E Rep., supra, the depositor retained control of the pass-book; and this fact is referred to in the opinion. There are quite a number of authorities in the Massachusetts Reports, where deposits were made in the name of other persons, the depositor retaining the pass-book, and the deposits were claimed by the persons in whose names they were made, as gifts, in which it was held that the gifts were not absolute, and the money did not pass to the claimants. The fact that the depositor retained control of the pass-book, and that by virtue of the by-law no payment should be made without the production of the pass-book, was considered as evidence to show the depositor did not intend to part with dominion over the money. The question of the intention of the depositor is a question of fact open to inquiry; and his acts and declarations at the time of the deposit, or to the person in whose name it was made, could be considered. Sherman v. Bank, 138 Mass. 581; Brabrook v. Bank, 104 Mass. 228; Scott v. Bank, 140 Mass. 165, 2 N.E. 925; Broderick v. Bank, 109 Mass. 150. In the case of Gerrish v. Institution, 128 Mass. 159, A. made a deposit in trust for his son by name, and also a deposit for his grandchildren by name. The court recognized the rule that it was not enough that the testator manifested an intention to create the trust and make the gift at some future time, but that the act of transfer must be fully and completely executed. The court further held that it was a question of fact whether the trust has been perfectly created; that, when the trust is thus created, it is effectual to transfer the beneficial interest, and operates as a gift perfected by delivery. The son and grandchildren offered to prove the declarations of the depositor "that he had put the money in the bank for them, that he wanted...