Stiles v. Newschwander

• Decision Date: 25 October 1946
• Docket Number: 148/460.
• Citation: 49 A.2d 572
• Parties: STILES v. NEWSCHWANDER et al.
• Court: New Jersey Court of Chancery

49 A.2d 572

STILES

v.NEWSCHWANDER et al.

148/460.

Court of Chancery of New Jersey.

Oct. 25, 1946.

Suit by Raymond B. Stiles, administrator of the estate of Emma L. Newschwander, deceased, against Albert Newschwander and another to recover a fund on deposit with bank.

Decree for defendants.

Syllabus by the Court

1. A defendant is competent to testify to conversations and transactions with a decedent, whose representative is the complainant, where the action is founded upon an allegation of fraud or breach of trust. R.S. 2:97-2, N.J.S.A.

2. Admissions by decedent are evidential against his administrator.

3. Generally declarations of a deceased person, before or after, but not contemporaneous with an alleged gift, are considered hearsay and unavailable to his representative in order to invalidate the transferee's title by showing the intent with which the act was done. But such proof may be received in cases involving joint savings accounts or other joint estates.

4. There must be both an intention to make a gift and a carrying of the intention into effect, for the court will not enforce a non-executed intention or promise to give, since consideration is absent.

5. Upon a gift of a partial interest in property and a retention by the donor of an interest, the donor does not strip himself of control or dominion of the property to an extent that would nullify the right and title which he retains. He need only surrender control and dominion over the interest which he gives away.

6. A, who had a savings account, had B's name added, so that they became joint tenants, with right of survivorship, each having power to draw, but B's title was burdened with a trust in favor of A so long as they both lived. Held, that the gift took effect in praesenti, was good and was not in conflict with the statute of wills.

7. B, fully recognizing that his title was subject to a trust in favor of A, and not intending to deprive her of her interest, drew out the whole fund and redeposited it in his sole name. Thereafter, during her lifetime, he applied all withdrawals to her use. Held, that he owned the balance remaining at her death.

Stickel & Stickel, of Newark (Fred G. Stickel, Jr., and Harold M. Kain, both of Newark, of counsel), for complainant.

Louis H. Hollander, of Newark (Harold N. Gast, of Perth Amboy, of counsel), for defendants.

BIGELOW, Vice Chancellor.

The administrator of the estate of Emma L. Newschwander, deceased, sues to recover a fund on deposit with the Howard Savings Institution of Newark. Miss Newschwander, who died February 5, 1945, age 68 years, had lived for 30 years with the defendants, her brother Albert and his wife. The account belonged to her and stood in her name until December 1, 1941, when she requested the bank to ‘add the name of Albert Newschwander to my account #567501, making same payable to either or survivor.’ This was done. Early in the morning of September 26, 1944, she suffered a stroke from which she never recovered. That same day, Albert caused the money on deposit, $3,500, to be transferred to an account in his sole name. Five weeks later, the name of his wife was added to the account. This is the fund in controversy.

The administrator objects that the defendants are incompetent to testify to conversations and transactions with deceased. Since enactment of the supplement, P.L.1931, p. 474, such testimony has been received where the action is founded upon an allegation of fraud or breach of trust. R.S. 2:97-2, N.J.S.A. The bill of complaint alleges that Miss Newschwander had her brother's name added to the save account, upon his agreement to act as trustee in respect to the account; that he was never owner, but was merely the agent, representative or trustee of decedent; that Albert's putting the money in his own name, and later in the names of himself and his wife, and his use of part of the fund for his own benefit, were violations and breaches of the trust. These charges bring the case within the operation of the supplement and enable the defendants to testify to conversations and transactions with the deceased.

The defendants, besides testifying themselves, called to the stand neighbors and old friends of Miss Newschwander who related what decedent had said on sundry occasions about the account. The conversations were not part of the res gestae, but were received as admissions by decedent. Any statements by her that would be evidential against her were she still living and the complainant in the suit, are equally evidential against her administrator. Brice v. Atlantic Coast Electric Ry. Co., 102 N.J.L. 288, 132 A. 253; Wigmore, Ev. sec. 1081.

In the attempt to show that decedent had no donative intent, complainant proved statements made by decedent, not in the presence of defendants. Two of these conversations occurred a month or two before she had Albert's name added to the account; one was nearly two years afterward. Generally, declarations of a deceased person, before or after, and not contemporaneous with, the alleged gift, are considered hearsay and unavailable to his representative in order to invalidate the transferee's title by showing the intent with which the act was done. Veader v. Veader, 89 N.J.L. 399, 99 A. 133. But such proof has been received in cases involving joint savings accounts or other joint estates. Skillman v. Wiegand, 54 N.J.Eq. 198, 33 A. 929; Dill v. Dill, 118 N.J.Eq. 374, 179 A. 370; Id., 119 N.J.Eq. 467, 183 A. 172. Accordingly, I have given consideration to this evidence. The fact appears clear that Miss Newschwander and her brother Albert both intended that during her lifetime he should draw upon the fund only for her convenience and benefit, and that he should have for his own use whatever might remain in the account at her death.

Decedent and her brother went to the bank together to have his name put on the passbook. When this was accomplished and the attendant had returned the book to Miss Newschwander, she handed it to Albert; and when they reached home, he put the book where it had usually been kept, in his desk with her building and loan book and other papers, where it remained available to Miss Newschwander, as well as to her brother. Albert had for long taken care of her business with the bank and he continued to do so after he became her co-depositor. She made out and signed the withdrawal slips at home; Albert took them to the bank and got the money for her, $10 or $20 or so, generally once or twice a month. Until he drew out the entire fund, Albert signed only one withdrawal slip, June 7, 1944, $25. From the time he transferred the account to his sole name until the death of Miss Newschwander four months later, he drew $800. He testified that he used none of the money for himself, but applied all withdrawn for the benefit of his sister. The date of the last deposit was July 5, 1940, more than a year before the account was made joint.

Miss Newschwander did everything that seemed to her necessary to carry into effect her intention in regard to the account; she put off nothing to some future date. If her acts were ineffectual to give an interest in the fund to Albert, it is because some law or policy of our state forbids...