Warner v. Burlington Fed. Sav. & Loan Ass'n, 328.

Citation49 A.2d 93
Decision Date01 October 1946
Docket NumberNo. 328.,328.
CourtUnited States State Supreme Court of Vermont
PartiesWARNER v. BURLINGTON FEDERAL SAVINGS & LOAN ASS'N et al.

OPINION TEXT STARTS HERE

Exceptions from Chittenden County Court; Blackmer, Presiding Judge.

Action by Frank L. Warner, administrator of the estate of Cora H. Jerry, deceased, against Burlington Federal Savings & Loan Association to recover amount deposited by plaintiff's decedent in designated account in defendant bank. Upon the petition of defendant, the Bishop of the Roman Catholic Diocese of Burlington, Vermont, was cited in as claimant. Judgment for plaintiff and both plaintiff and claimant bring exceptions.

Judgment affirmed.

J. H. Macomber, J. H. Macomber, Jr., and A. Pearley Feen, all of Burlington, for plaintiff.

Leary & Leddy, of Burlington, for claimant.

Mary C. Arthur, of Burlington, for defendant.

Before MOULTON, C. J., SHERBURNE and STURTEVANT, JJ., and HUGHES, Superior Judge.

SHERBURNE, Justice.

In this action the plaintiff seeks to recover the amount deposited by Cora H. Jerry, and the interest thereon, in account No. 90 in the defendant bank. Upon the petition of the defendant, the Bishop of the Roman Catholic Diocese of Burlington, Vermont, was cited in as claimant, under the provisions of P.L. 6725, and said Bishop duly appeared. The issue is the ownership of the account as between the plaintiff and the claimant. Trial was by court, findings of fact were made, and judgment was entered for the plaintiff. The plaintiff and claimant have both filed bills of exceptions.

The findings show the following facts:

Cora Jerry professed the Roman Catholic faith and was a member of the Parish of the Cathedral of the Immaculate Conception in Burlington. From April, 1924, to April, 1940, she was employed as cook at the Rectory of the Cathedral, with the exception of three intervals. She died on January 12, 1944, at the age of 72. She never married. Prior to 1923 she opened account No. 965 in her name in the Burlington Building and Loan Association. The ledger record of this account contains the following entry near the top at the right:

‘Order-June 8, 1923, I wish to leave the money I have in this bank both principal and interest in trust for the Bishop of Roman Catholic Diocese of Burlington, Vermont.

(Signed) Cora H. Jerry

(Witness) C. S. Brownell'

This entry is in the handwriting of R. A. Cook, for many years an officer of that Association. This ledger record also contains the following entry in the upper left corner:

July 2, 1923, In case of my death please pay to the order of the Bishop of the Diocese of Burlington, Vermont, any funds due me on account of the 5 shares series 36 standing in my name in account number 965.

(Signed) Cora Jerry

(Witness) Dr. D. A. Shea'

The identity of the writer of this entry is not disclosed. From February 17, 1936, to January 1, 1941, the Burlington Federal Savings and Loan Association was operated as a separate corporation, but in conjunction with the Burlington Building and Loan Association. On January 1, 1941, the latter merged into the former, and the Burlington Federal Savings and Loan Association became the sole operating company. On April 10, 1936, Miss Jerry opened account No. 63 in her own name in the Burlington Federal Savings and Loan Association, and deposited $1,400 therein. On November 3, 1936, account No. 965 in the Burlington Building and Loan Association matured at $1,603.36 and on that date Miss Jerry opened account No. 90 in the Burlington Federal Savings and Loan Association and deposited $1,403.36 therein, and $200 in account No. 63. On January 6, 1938, she transferred $1,600, the full amount of account No. 63, to account No. 90. Including the above, 12 deposits were made in account No. 90 and the last deposit on July 2, 1940, brought the account to $5,000.

Miss Jerry had two more savings accounts, one in the Chittenden County Trust Company, of Burlington, opened March 28, 1933, in the name of Cora Jerry trustee unto the Bishop of the Roman Catholic Diocese,’ and one in the Howard National Bank and Trust Company, of Burlington, opened January 2, 1934, in the name of ‘Miss Cora H. Jerry trustee for the Bishop of the Roman Catholic Diocese of Burlington, Vt.’ Neither of these accounts ever exceeded $1,500. From the time account No. 90 in the Burlington Federal Savings and Loan Association was opened until her death Miss Jerry knew that each of her savings accounts was insured up to the amount of $5,000, and during that period the interest rates were higher in this bank than in the other Burlington banks. There were no withdrawals from account No. 90 prior to January 6, 1941. From that date to January 3, 1944, there were seven withdrawals of interest only, reducing the amount of the account to exactly $5,000 each time. In making withdrawals Miss Jerry signed ‘repurchase applications' either as Cora Jerry or Cora H. Jerry. Six of the withdrawals were paid by checks. The seventh was paid in cash. One check was drawn to the order of the Bishop DeGoesbriand Hospital, Inc., in accordance with a direction written on the corresponding repurchase application, the other five checks were drawn to the order of Cora H. Jerry or Cora Jerry, and were endorsed Cora H. Jerry except in the case of the check dated July 1, 1941, which bears the indorsement Cora H. Jerry Trustee.’ Except for the check to the order of the said Hospital all withdrawals from account No. 90 were deposited by Miss Jerry either in the savings account in the Chittenden County Trust Company or in the savings account in the Howard National Bank and Trust Company.

Account No. 90 in the defendant bank was opened by Miss Jerry in her own name. She signed Cora H. Jerry on the signature card, and that name appears on the bank's ledger card. A pass book was issued to her by the bank, and on its front cover appears the name ‘Miss Cora H. Jerry and her address. This pass book was found in the room occupied by Miss Jerry at the time of her death. After her death there was found attached by wire staples to the right hand margin of the ledger card for account 90 a white card 3? x 5? bearing the following writing:

‘I wish to leave the money in this bank both principal and interest in trust for the Bishop of the Roman Catholic Diocese of Burlington, Vermont.

(Signed) Cora H. Jerry'

The signature on this card is that of Miss Jerry, but the balance of the writing is by a person unknown. This card was attached to the ledger card for some considerable period prior to Miss Jerry's death, but when and under what circumstances is unknown, and the court inferred that it was attached in the regular course of business with Miss Jerry's authority. No notice by delivery of the pass book or otherwise was ever given by or in behalf of Miss Jerry to the claimant or to any representative of an intent or desire on her part that the claimant have at her decease any interest, legal or equitable, in either account No. 90 or in account No. 965 in the Burlington Building and Loan Association. She made deposits in and withdrawals from these two accounts at will, to the extent that she elected to do so, and without the consent of or notice to the claimant or any representative. Because of exceptions thereto we quote findings 24, 49, 50 and 51:

(24) Wherever a place is provided in the books and records of the Burlington Federal Savings and Loan Association for stating the name of the owner of said account number 90, the name of Cora H. Jerry appears as such owner.

(49) Cora H. Jerry retained sole and complete dominion and control during her lifetime over her investments in said share accounts of the Burlington Building & Loan Association and said Burlington Federal Savings & Loan Association.

(50) Both Cora H. Jerry and the Burlington Federal Savings and Loan Association recognized and dealt with said account No. 90 as being in the absolute and unconditional ownership of Cora H. Jerry during her lifetime.

(51) Cora H. Jerry did not intend that any title to or interest in the funds invested by her in shares of the Burlington Federal Savings & Loan Association should pass from her until after her death.’

The question at issue is whether the facts recited show that Miss Jerry created a perfect or complete trust for the claimant of account No. 90 in defendant bank. Substantially all of the law necessary for the determination of this question is found in Pope v. Burlington Savings Bank, 56 Vt. 284, 290, 291, 48 Am.Rep. 781; and Connecticut River Savings Bank v. Albee's Estate, 64 Vt. 571, 574, 575, 25 A. 487, 488, 33 Am.St.Rep. 944. We quote from the latter case: ‘A completed trust, although voluntary, is valid, and may be enforced in equity. It is not essential to its validity that the beneficiary should have had notice of its creation, or have assented to it. The owner and donor of personal property may create a perfect or complete trust by his unequivocal declaration, in writing or by parol, that he himself holds such property in trust for the purposes named. The trust is equally valid whether he constitutes himself or another person the trustee....

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10 cases
  • Ridge v. Bright
    • United States
    • North Carolina Supreme Court
    • 26 Junio 1956
    ...as between himself and the beneficiary that he should part with the possession of the property. Warner v. Burlington Federal Savings & Loan Ass'n, 114 Vt. 463, 49 A.2d 93, 168 A.L.R. 1265; Cohen v. Newton Savings Bank, 320 Mass. 90, 67 N.E.2d 748, 168 A.L.R. As to the reservation of the pow......
  • Stone v. Stone, 71-1995
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • 23 Mayo 1972
    ...Moreover, "The act creating the trust must be consummated, and not rest in mere intention" (Warner v. Burlington Federal Savings & Loan Ass'n. (Vt.1946) 114 Vt. 463, 49 A.2d 93, at p. 96), must represent a completed, executed transaction in praesenti, and normally must involve delivery of t......
  • Smith v. Deshaw, 365
    • United States
    • Vermont Supreme Court
    • 6 Febrero 1951
    ...571, 574, 575, 25 A. 487, we recently restated most of our law upon voluntary trusts in Warner, Adm'r v. Burlington Federal Savings & Loan Ass'n, 114 Vt. 463, 467, 468, 49 A.2d 93, 168 A.L.R. 1265. Without repeating all that is there said, we gather that the owner and donor of personal prop......
  • Little v. Little
    • United States
    • Vermont Supreme Court
    • 7 Abril 1964
    ...revocation and thus was still executory, incomplete and imperfect and was not enforceable. Jerry's Est. v. Burlington Federal Savings and Loan Assn., 114 Vt. 463, 469, 49 A.2d 93, 168 A.L.R. 1265. The reservation of the right to revoke the trust account distinguishes the present case from t......
  • Request a trial to view additional results

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