Tribull v. Tribull, 32

• Decision Date: 06 January 1956
• Docket Number: No. 32,32
• Citation: 119 A.2d 399,208 Md. 490
• Parties: Paul A. TRIBULL v. Francis A. TRIBULL, Evelyn Tribull, George Hofferbert, Esq., Executor of the Estate of Anna B. Tribull, and The Canton National Bank, a body corporate.
• Court: Maryland Court of Appeals

Page 490

208 Md. 490

119 A.2d 399

Paul A. TRIBULL v. Francis A. TRIBULL, Evelyn Tribull, George Hofferbert, Esq. Executor of the Estate of Anna B. Tribull, and The Canton National Bank, a body corporate.

No. 32.

Court of Appeals of Maryland.

Jan. 6, 1956.

Jacob Blum, Baltimore (Norman M. Owrutsky and Lloyd S. Mailman, Baltimore, on the brief), for appellant.

Robert J. Dougherty, Baltimore, for Francis A. Tribull and others.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

BRUNE, Chief Judge.

The appellant, Paul A. Tribull, as one of the residuary legatees under the will of his mother, Anna B. Tribull, brought a suit in equity in the Circuit Court of Baltimore City against the appellees, Francis A. Tribull and Evelyn Tribull, his wife, and against the executor of the estate of his mother and the Canton National Bank, to set aside a transfer of a savings deposit made by Anna B. Tribull from an account standing in her name alone to a trust form of deposit 'for herself and Francis A. Tribull, joint owners, subject to the order of either, the balance at death of either to belong to the survivor.' At the conclusion of the plaintiff's testimony the Chancellor granted what was in effect (though not in name) a motion by the individual defendants to dismiss the bill, and subsequently entered an order of dismissal. The appeal is from that order.

Two principal questions are presented. The first is whether a legatee may sue in equity to enforce a claim on behalf of the estate or may only take proceedings in the Orphans' Court to require the executor to sue. If the first question is answered in favor of the legatee's right to sue, the second question is whether or not he has established sufficient facts to maintain his suit.

Mrs. Anna B. Tribull was the mother of seven children, two of whom are Paul and Francis, who are parties to this suit. Another of her sons (John A.) is a priest; one of her daughters (Mary M.) is a nun. By her will, which was executed in September, 1951, Mrs. Tribull made bequests aggregating $2,500 to two Roman Catholic churches and to a missionary organization, bequeathed the greater part of her estate, consisting of stock valued at more than $30,000, to her two children who had gone into religious orders, and gave the residue of her estate in equal shares to her five other children.

Mrs. Tribull died of cancer on July 13, 1952, at a hospital to which she had been admitted on July 1, 1952.

The savings account which is the subject of this suit apparently had its origin prior to December 6, 1945. On that date the account, then amounting to $14,869, was put in the name of Mrs. Tribull in trust for herself and her daughter, Antoinette J. Tribull (now Mrs. Steinert), as joint owners, the balance at death of either to belong to the survivor, but it was subject to the order of Mrs. Tribull alone. This account was numbered 20626 and is sometimes referred to below as the 'first account.' Mrs. Steinert, who is one of the residuary legatees, but is not a party to this suit, testified that she went to the bank with her mother when the first account was established and that the purpose of putting her (the daughter's) name on the bank book was to enable her to go to the bank to withdraw money for her mother when the latter needed it in case she was sick. It will be noted that because of the form of the account, withdrawals could be made only upon orders signed by the mother. Under the bank's practice it was necessary that the daughter, in order to make a withdrawal, produce both a withdrawal slip signed by the mother and the passbook.

Occasional withdrawals in amounts usually of two, three or four hundred dollars and in a few instances of five or six hundred dollars, were made at intervals varying from about one month to six months, but only one deposit, other than interest credited, was made, from December 6, 1945, until July 3, 1952. As a result, the account gradually declined during that period to $7,278.17. It remained, however, unchanged in form, although from 1947 until about May, 1951, there was a marked coolness between Mrs. Tribull and Mrs. Steinert. In or about May, 1951, Mrs. Tribull became sick and asked Mrs. Steinert to help her; and except for a time in May, 1952, when Mrs. Tribull was in the hospital, Mrs. Steinert took care of her until Mrs. Tribull was again admitted to the Lutheran Hospital on July 1, 1952.

On that date Francis A. Tribull, one of the defendants, took his mother to the hospital in what proved to be her last illness.

Two days later, July 3, 1952, the first account was closed, and the balance then on deposit, amounting to $7,278.17, was transferred, upon the presentation of the passbook and a withdrawal slip signed by Anna B. Tribull, to her name alone in a new account, numbered 22842. A new signature card for this account, bearing only Mrs. Tribull's signature, was filed with the bank. (This account, as it stood until July 8, 1952, is sometimes referred to below as the 'second account.') This transaction was handled by Francis A. Tribull.

On July 8, 1952, the second account was changed, in accordance with a form of request bearing that date and signed by Mrs. Tribull, from her name alone to 'Anna B. Tribull in trust for self and Francis A. Tribull, joint owners, subject to order of either, the balance at death of either to belong to the survivor.' (This is sometimes referred to below as the 'third account.') This transaction, too, was handled by Francis A. Tribull. A photostatic copy of the bank's ledger sheet shows that no change was made in the number of the account as a result of the change in favor of Francis A. Tribull. (The ledger sheet, for some reason which is not explained, reverses the names of the depositors and shows the account as 'Francis A. Tribull in trust for self and Anna B. Tribull, joint owners,' etc., but no point is made of this.)

No notice of either change in the savings account was given to Mrs. Steinert, who had been a beneficiary under the first account, or, it appears, to any of the other children of Mrs. Tribull until after her death.

The decedent also rented a safe deposit box in the vault of the Canton National Bank, and kept securities in it. This box was originally rented by the decedent and her husband in 1929. He predeceased her; and though the date of his death is not shown, it appears to have been prior to June 14, 1951, on which date the old rental agreement was terminated and a new one was entered into. Under the new lease, the decedent and Francis A. Tribull were the tenants, and access to the box might be had by either of them or the survivor. According to the bank's records access to the box was had after June 14, 1951, as follows: on July 20, 1951, by the mother only; on July 3, 1952, by the mother and Francis; on July 14, 1952, and on July 18, 1952, by Francis alone. It was stipulated in open court that it was impossible for the mother to have visited the bank on July 3, 1952, the bank record to the contrary notwithstanding.

The mother entered the hospital on July 1, 1952, at which time her case was diagnosed as one of obstructive jaundice. On July 9th an abdominal operation was performed, as a result of which it was found that she had cancer of the gall bladder and that cancer involved practically every organ of the upper abdomen and that she was beyond the aid of surgery. She died on July 13, 1952.

All of the hospital records were introduced in evidence, and the surgeon in charge of the case was examined. Without attempting to review his testimony or the records in any detail, it may be said that the evidence shows, in general, that the patient was given a number of blood transfusions and that she was given sedatives and drugs to relieve pain, but not in sufficient quantities to put her to sleep. The doctor saw her daily and whenever he saw her she appeared to him to be rational. The nurse's notes for July 9 showed that at six o'clock that morning, which was a few hours before she was to be operated on, the patient was sitting on the side of her bed singing. That is the only instance of alleged irrational conduct during her hospitalization. There is also testimony by Mrs. Steinert that on two occasions when she visited her mother at the hospital, her mother was either very drowsy or would fall asleep. There was testimony that the decedent had been strong minded and domineering in the family. It is not clear just how much she might have changed in these respects at the time of her last illness; but it seems evident that she was a very ill person when she entered the hospital and that her condition grew progressively worse until her death less than two weeks later.

Following Mrs. Tribull's death, Francis A. Tribull went to the bank on July 18, 1952, and prepared an inventory of the securities in his mother's safe deposit box, all of which were duly turned over to Mr. Hofferbert as executor of Mrs. Tribull's estate. On July 21, 1952, Francis A. Tribull closed the third account by making two withdrawals--one in the amount of $36.39 to pay the inheritance tax, and the other in the amount of $7,241.78 which was thereupon transferred to a new account in the name of Francis A. Tribull in trust for himself and his wife as joint owners, subject to their joint order, the balance at the death of either to belong to the survivor.

A meeting of Mrs. Tribull's children was held on some date, which unfortunately is not shown, at the office of her executor, who had been her counsel and who had drawn her will, and the will was read. It made no mention of the bank account and the executor knew nothing of it; but one of the children inquired about it and Francis then stated that it had nothing to do with the estate, that his mother had had his name put on the account and that it belonged to him personally. There was a rather lengthy discussion of the matter, which ended with Francis saying, in...