Tabor v. Tabor.

• Citation: 57 A.2d 735
• Decision Date: 10 March 1948
• Docket Number: No. 1851.,1851.
• Parties: TABOR v. TABOR.
• Court: United States State Supreme Court of Rhode Island

57 A.2d 735

TABOR

v.TABOR.

No. 1851.

Supreme Court of Rhode Island.

March 10, 1948.

Appeal from Superior Court, Providence and Bristol Counties; Charles A. Walsh, Judge.

Bill in equity by Samuel L. Tabor, administrator of the estate of Mabel A Tabor, deceased, against J. Earle Tabor to establish ownership of a joint bank account made payable to the deceased or to the respondent or to the survivor. From a decree dismissing bill, the complainant appeals.

Appeal denied and dismissed, decree affirmed, and cause remanded for further proceedings.

Edward F. Dwyer, of Woonsocket, for complainant.

John L. Curran, of Providence, for respondent.

CONDON, Justice.

This is a bill in equity to establish ownership of a joint bank account made payable to Mabel A. Tabor or J. Earle Tabor or to the survivor. The first named depositor has deceased. The complainant is the administrator of her estate and the respondent is the surviving depositor. Complainant and respondent are respectively the surviving husband and son of the deceased. The cause was heard in the superior court, and at the conclusion of the evidence the trial justice denied and dismissed the bill. A decree, containing certain findings of fact to which reference will be hereinafter made, was entered in accordance with that decision. Complainant has duly appealed from that decree to this court.

For reasons of appeal he states that such decree is contrary to the law, contrary to the evidence, and contrary to the law and the evidence and the weight thereof. He argues that the trial justice erred in placing upon him the burden of showing by a preponderance of the evidence that the account belonged to the deceased's estate. He contends that on the contrary the law places the burden upon the respondent to prove that the deceased made a gift of the account to him to take effect in her lifetime.

Respondent, in answer to those contentions, argues that the complainant has ignored the findings of fact in the decree which show that respondent proved a gift to the satisfaction of the trial justice according to law. In other words, as we understand the respondent, he concedes that he had the burden to prove that ‘Mabel A. Tabor did make a valid and completed gift inter vivos to respondent of said bank book’ as he alleged in paragraph (6) of his answer.

The law generally in cases of this kind is well settled in this state. Peoples Savings Bank v. Rynn, 57 R.I. 411, 190 A. 440; Weber v. Harkins, 65 R.I. 53; 13 A.2d 380. In the latter case, at page 59 of 65 R.I., page 382 of 13 A.2d, the principle was stated as follows: ‘The burden of establishing a gift inter vivos is upon a claimant; and he must establish that the donor intended, in praesenti, to divest himself of the exclusive ownership and control over the subject matter of the alleged gift and to vest such ownership and control jointly in the claimant.’ And we said in the Peoples Savings Bank case, at page 423 of 57 R.I., page 446 of 190 A., with perhaps a little more particularity: ‘We must keep constantly in mind, in the determination of a case of the kind before us, that the party asserting a right to the deposit, as survivor of the other depositor, who originally opened the account and whose money only was deposited in the account, must show a completed gift of a joint interest in the deposit, and also the intention of the original depositor to make such a gift in praesenti.’ The claimant in each of those cases admitted that the account in question had been opened by the deceased depositor solely with his or her own money; that none of the claimant's money had thereafter been deposited in such account; and that the deceased alone had made withdrawals therefrom.

In the case at bar the uncontradicted evidence was that Mabel A. Tabor originally opened the account in 1913 in the form in which it was found at her death in January 1945; that the other depositor, J. Earle Tabor, during that period from time to time deposited his own funds in the account and also made withdrawals therefrom solely for his own purposes. In addition there was further evidence that most of the deposits in the account were made by J. Earle Tabor and that the only substantial withdrawals were those made by him. It further appeared from the evidence that the deceased kept the bankbook in a tin box in her own room and that in the presence of a Mrs. Young on July 1, 1944, the day Mabel A. Tabor left her home to go to the hospital, she told the respondent to go to her room and ‘get the pig skin bag and the tin box, take them home. They are yours.’ And respondent immediately did so. Thereafter until his mother died at the hospital seven months later he retained the exclusive possession of the book. Mrs. Young also testified to the above effect.

A further piece of evidence tending to prove Mabel A. Tabor's intention to give her son all her interest in her personal effects, including the bankbook in question, is a bill of sale of certain furniture and heirlooms and also ‘my pig skin bag-tin box and contents * * *.’ This bill of sale was drawn by Samuel S. Tourtellot at the direction of Mabel A. Tabor who executed it on October 4, 1940 in his presence. He testified that when he was drawing the bill of sale he asked her if she wanted to enumerate the contents of the bag and the box and she replied that every one knew what they contained. Respondent also testified that he knew what...