Tyree v. Ortiz
| Decision Date | 04 June 1968 |
| Docket Number | No. 1920,1920 |
| Citation | 243 A.2d 774,127 Vt. 177 |
| Parties | Teresa Ortiz TYREE v. Manuel ORTIZ. |
| Court | Vermont Supreme Court |
Reginald T. Abare, Barre, for plaintiff.
Cornelius O. Granai, Barre, for defendant.
Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.
The plaintiff, Teresa Ortiz Tyree, and the defendant, Manuel Ortiz, are mother and son. In dispute between these parties is the possession of a Treasurer's check in the amount of $6,500.00 payable to the plaintiff by the Barre Trust Company, a banking institution of Barre, Vermont, as well as a passbook of the same Barre Trust Co., with 'Mrs. Leo Ortiz, Trustee for Manuel Ortiz', written on its face, and showing a balance of $1,761.97.
At the time that the plaintiff brought her Bill in Chancery in the Washington County court of Chancery both the check and the passbook were in the possession of the defendant and his attorney, but during the hearing on the plaintiff's bill, and the defendant's answer and cross bill, these items were turned over to the Court of Chancery to be held until final determination of the cause. Hearing was held on the matter by the Washington County Court of Chancery on November 2, 1967; fndings of fact were made and filed on November 15, 1967, and a final decree awarding the check and passbook to the plaintiff was filed on December 1, 1967. It is from this decree, as well as exceptions to certain of the facts found, that defendant has taken his appeal here.
Based upon those findings of fact made below to which the exceptions were taken the following factual situation existed. The passbook, the ownership of which is now disputed, was first issued in 1925 with a deposit of $1.00 made by the Barre Trust Company, in connection with the then practice of the bank to establish such an account upon the birth of each child in the community.
The account lay dormant for many years, except for interest accumulation, until Mrs. Tyree (then Mrs. Ortiz) commenced making deposits in such account from her earnings. Soon after the death of her first husband, Leo Ortiz, father of the plaintiff, Mrs. Tyree sold the house which had been owned by the couple, and deposited the sum of $3,700.00 in the account on August 18, 1945.
The defendant, in his brief, attaches the greatest importance to the fact that the account, represented by passbook No. 2824, was originally established by the Barre Trust Co., with the one dollar token deposit. But from the time of its inception, the passbook was retained by Mrs. Tyree, the account was completely under her management and control, and all monies placed in the bank account were deposited by her from her own funds. Although she may not have been the one who entitled the account 'Mrs. Leo Ortiz, Tustee for Manuel Ortiz' her management and control of the account was consistent with the wording of the passbook, and the fact that such designation may have been originally placed on the passbook is immaterial under the factual situation that existed from 1925 until 1967.
Manuel Ortiz had no knowledge that this bank account was in existence until on or about March 24, 1967. At this time, Mrs. Tyree had long been remarried, and having been gone from Barre for twentytwo years, was living in Florida.
She sent the passbook to the Barre bank, requesting that the bank send her a treasurer's check for the sum of $6,500.00, in March of 1967. The bank issued such check and mailed it, together with the returned passbook, supposedly to Mrs. Tyree. However, through a mistake of the Postal Service both passbook and check were delivered to Manuel Ortiz. He, thereby, gained his first knowledge of the existence of the account and retained both the check and the bank book as his own; the end result of which conduct was the commencement of the Chancery proceeding now before us.
We now turn to a consideration of the briefed exceptions of the defendant to certain findings of fact made by the chancellor below. The first such exception is to Finding 2:
'In the year 1925 a savings account was opened in the Barre Trust Company on may 14 with a deposit of $1.00. A passbook No. 2824, Barre Trust Company, entitled 'Mrs. Leo Ortiz, Trustee for Manuel Ortiz' was issued to Mrs. Leo Ortiz, the plaintiff; and until on or about May 24, 1967, this passbook was constantly in her possession.'
The objection of the defendant is that the finding is without evidence to support it. But the bank book itself, entitled as the finding states, is an exhibit in the case, and the defendant's answer and cross bill states that the account was so established. The uncontroverted evidence in the case is that this passbook was always in the possession of Mrs. Ortiz until mailed by her to the Barre bank in March of 1967.
The defendant argues that Finding 2, above quoted, is based upon the wrongful admission of a signature card held by the bank upon which appears in identical writing the written names of Manuel Ortiz and Teresa Ortiz, with the written word 'Trustee' also appearing in a different ink and different handwriting than the two names. But, as just stated, Finding #2 is fully supported by the evidence in the case, excluding any evidence that might be supplied by the signature card, or any evidence in reference to it. The record before us does not support in any way the conclusion of the defendant that Finding #2 was based upon the signature card. Defendant takes nothing by this exception.
The next objection is to Finding #10:
Also objected to is Finding #12: 'At no time did Mrs. Ortiz Tyree ever tell her son Manuel that the account existed.'
Both Findings are objected to by the defendant as being contrary to law. However, we do not find that either of such findings are conclusions of law on the part of the chancellor. Finding #10 is merely a statement of the conflicting claims of the parties, while Finding #12 is based upon the defendant's own testimony, and is uncontradicted evidence. Defendant takes nothing by these exceptions.
Next objected to is Finding 13:
'The original signature card, which was furnished to the Chancellor with the consent of both parties, shows the signature, Manuel Ortiz, Teresa Ortiz, both appearing to be in the same hand and further shows that the word 'Trustee' after the signature Teresa Ortiz appears to be, and we find is, in a different hand than that of the signatures Manuel Ortiz, Teresa Ortiz.'
This card was given to the chancellor to examine after the hearing of November 2, 1967. The record before us shows that while a bank official was questioned as to the existence of a signature card during the course of the hearing, such card was not introduced in evidence at that time. At the conclusion of the case, counsel for both parties agreed that if a signature card was discovered by the bank official it could be shown to the court, as well as to the attorney for the plaintiff, and that the attorney for the defendant would 'look at it later.'
This procedure was followed, with the attorney for the defendant being shown the signature card by the chancellor after it came into the chancellor's possession. No objection was made at that time by the defendant to the consideration of the card, nor was any request made that hearing be held on the question of its admission into evidence.
The objection by the defendant to the chancellor's consideration of the signature card on the ground that he was denied an opportunity to cross-examine the holder of the card is inconsistent with his conduct at the time he examined the card when it was in the possession of the chancellor, and comes too late in view of his lack of objection at that time.
Further, although the defendant contends here that Finding 13 is the basic finding upon which the whole case revolves, we do not find it so. The chancellor finds only that the word 'Trustee' on the card is in a different hand than that of the signatures on the card, but makes no conclusionary finding from this fact.
It is plain and evident, as we shall demonstrate later in this opinion, that the chancellor's determination of the question presented, and the decree made, were based upon a consideration of the passbook, and the intention of the plaintiff, and not...
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...¶ 6. In Vermont, there are two essential elements of an inter vivos gift: (1) donative intent and (2) delivery. Tyree v. Ortiz, 127 Vt. 177, 184-85, 243 A.2d 774, 778-79 (1968). Any interest in the property claimed by daughter in this case was created by mother's act of gifting it to her, a......
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