Staples v. Berry

• Decision Date: 20 December 1912
• Citation: Staples v. Berry, 110 Me. 32, 85 A. 303 (Me. 1912)
• Parties: STAPLES v. BERRY.
• Court: Maine Supreme Court

85 A. 303

110 Me. 32

STAPLES

v. BERRY.

Supreme Judicial Court of Maine.

Dec. 20, 1912.

Exceptions from Supreme Judicial Court, Sagadahoc County, at Law.

Action by Frank L. Staples, as administrator of Fred E. Savage, deceased, against John H. Berry, administrator and trustee of the estate of Nellie A. Berry, deceased. Judgment for plaintiff, and defendant brings exceptions. Overruled.

Argued before WHITEHOUSE, C. J., and SAVAGE, CORNISH, KING, and HALEY, JJ.

Frank L. Staples, of Bath, for plaintiff.

Barrett Potter, of Brunswick, and William T. Hall, Jr., of Richmond, for defendant.

CORNISH, J. The following essential facts appear in the agreed statement upon which the finding of the justice at nisi prius was based:

Fred E. Savage and Nellie A. Savage were married in March, 1873, and lived together until the death of the husband, on January 26, 1904. Two children were born to them, a son, Fred, born in 1877 and still living, and a daughter born in 1874, who married one Lewis and died in 1906, leaving a daughter, Marguerite.

December 7, 1910, the widow married the defendant, John H. Berry, executed her will on December 9, 1910, and died testate January 22, 1911, leaving him practically all her estate. He was subsequently appointed administrator with the will annexed. The plaintiff was appointed administrator of the estate of the first husband, Fred E. Savage, on July 10, 1911.

This controversy arises over a savings bank deposit, and the agreed facts as to that are as follows:

April 17, 1893, Nellie A. Savage deposited $150 in the Gardiner Savings Institution in the name of her husband, Fred E. Savage. All, or nearly all, the subsequent deposits were made by her. Withdrawals of $45 and $25 were made by Fred E. on June 28, 1893, and July 15, 1890, respectively; and one of $30 was made by the wife on July 13, 1893, upon the order of the husband. No other withdrawals were made during the life of Fred E. On or about July 1, 1901, when the aggregate deposits amounted to about $1,400, the title of the Savings Bank account was changed by one of the officers of the institution, presumably by direction of the husband, on its ledger and on the deposit book, by inserting the necessary words so as to read "Nellie A. Savage and Fred E. Savage, may be drawn by either in any event." After that change and until the death of Fred E. Savage, the deposit book was most or all of the time in their joint possession; each having access to it. At the time of the death of Fred E., on January 26, 1904, the account amounted with accrued dividends to $1,870.98. On February 8, 1904, the widow deposited to the credit of this account $2,900, out of $3,000 which she had received as insurance on his life; she being the beneficiary in the policy. On January 16, 1907, the account then amounting to $4,878.46 was transferred by the widow to the Bath Savings Institution and there deposited to her sole credit.

Mr. Savage was for several years prior to the opening of the account with the Gardiner Savings Institution, and most of the time thereafterwards until his death, in the employ of Lawrence Bros. of South Gardiner, as their head sawyer, at wages of $3 per day, with usually a gift or bonus at the end of the sawing season. During a part of the time, he and his wife carried on a boarding house for employés of Lawrence Bros., but had ceased to carry it on before the account in the Gardiner Savings Institution began. The deposits of said account, prior to his death, consisted of his earnings and their joint savings. At the time of their marriage, neither husband nor wife had any property worth mentioning, and neither received any during their married life except from their earnings.

Under these agreed facts, the plaintiff seeks to recover in this action for money had and received the amount of the deposit in the Gardiner Savings Institution at the husband's death, with interest.

The case was heard by a single justice, who found for the plaintiff in the sum of $2,400.46, with interest from the date of the writ; and the defendant has brought the case to the law court upon exceptions to this finding.

The single issue is: Was that deposit the property of Fred E. Savage at the time of his decease on January 26, 1904?

We start out with the conceded fact that the money deposited belonged to the husband. It came primarily from his earnings, and was his alone. How was the title to it, or any part of it, taken from him and given to his wife? The burden is on the defendant to show this, and it must be proved by clear and convincing evidence.

"A strong instinctive passion for property often leads a husband or wife into schemes for the absorption and conversion of the other's possessions, and equity is watchful to defeat all such wrongful appropriations. It requires that the donor's intention to divest himself or herself of the property, and the execution of that intention by an act of delivery, shall be clearly proved by the donee." Lane v. Lane, 76 Me. 521. The same requirement exists in the case at bar, which is an action for money had and received and equitable in its nature.

It is not claimed by the defendant that prior to July 1, 1901, the wife had gained any title to the deposit, but the contention is set up that by causing the entry to be changed on the bank ledger and the deposit book by adding the words "Nellie A. Savage, and" and "may be drawn by either in any event" followed by the joint possession of the book, the wife was thereby made an owner in joint tenancy in the technical sense, so that at the husband's death not only the deposits made prior to such change, but also all subsequent ones became hers by right of survivorship.

The learned counsel for defendant admits in his brief that under the facts as agreed there was no gift causa mortis, and that no trust was created, and he "does not claim that what was done amounted to an absolute gift by Mr. Savage in his lifetime to Mrs. Savage of the entire deposit. In that sense, but in that sense only, there was no gift inter vivos." His own statement of his position is this: "That a joint tenancy was created in 1901, with a right of survivorship, and that, on the death of Mr. Savage his wife surviving, she took the whole deposit; no part of it having been withdrawn after the change in title."

That is not, in our opinion, the true legal effect to be given to the transaction.

In the first place, estates in joint tenancy are not favored in law at the present day and cannot be created in this state without unequivocal and compelling language. Stetson v. Eastman, 84 Me. 366, 24 Atl. 868. Our statute, first enacted in 1821, provides as follows: "Conveyances, not in mortgage, and devises of land to two or more persons, create estates in common, unless otherwise expressed. Estates vested in survivors upon the principle of joint tenancy shall be so held." R. S. c. 75, § 10.

In Stetson v. Eastman, supra, it was contended that this section applied to real estate but not to personal property, and this contention was answered by the court in these words: "It seems incredible to us that any such distinction could have been contemplated. There is more reason for rejecting the offensive doctrine in its application to chattels or moneyed securities than in its...