Washington v. Bank for Sav. in City of New York

• Decision Date: 13 May 1902
• Citation: 63 N.E. 831,171 N.Y. 166
• Parties: WASHINGTON v. BANK FOR SAVINGS IN CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

171 N.Y. 166

63 N.E. 831

WASHINGTON

v.BANK FOR SAVINGS IN CITY OF NEW YORK.

Court of Appeals of New York.

May 13, 1902.

Appeal from supreme court, appellate division, First department.

Action by Walter S. Washington, ancillary administrator of Margaret Hunter, against the Bank for Savings in the City of New York. From a judgment of the appellate division (72 N. Y. Supp. 752) affirming a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

W. W. Thompson, for appellant.

Louis Marshall, for respondent.

O'BRIEN, J.

The legal question involved in this appeal is whether an old and established rule of evidence is applicable to a state of facts somewhat novel and peculiar. In the month of February, 1895, one Margaret Hunter, an old lady between 75 and 80 years of age, was found dead in the house where she had lived for 27 or 28 years in the city of Newark, N. J. It appears that she had lived alone in the house for several years prior to her death. During the latter years of her life she was in feeble health, and apparently in very poor circumstances, if not in actual want. The plaintiff, who was the county physician, and the proper person under the laws of that state to take charge of the remains, was notified of the death, and arranged for the funeral, and at the same time took possession of all of her effects. He found upon her person a pocket, evidently taken from an old dress, which contained 17 savings bank books, representing deposits in various banks, one in Newark and the rest in the city of New York. He also found a number of papers, including three separate lists of the names of the various savings banks in which the deposits were made. These lists gave the numbers of the books and the dates of the deposits. After the plaintiff obtained possession of the lists and of the 17 books he discovered from the lists that there were additional amounts besides those for which there were bank books, and on investigation found the missing bank books at the various banks mentioned in the lists. The bank books represented accounts kept in a variety of forms between the deceased and the several banks, and disclosed the fact that at the time of her death she had on deposit in those several banks a sum of money which, in the aggregate, amounted to over $30,000. It seems that her maiden name was Margaret Brown, and it is assumed that at some time she had married a man by the name of Hunter, but if that was the fact he had disappeared, and during the 27 or 28 years that she had lived in the house mentioned he had never been seen by any of the neighbors in the vicinity, who had long known the deceased and had frequently been at her house. After the funeral letters of administration upon the estate of the deceased were issued to the plaintiff by the proper probate court in New Jersey, and subsequently, by a decree of the surrogate of the county of New York, ancillary letters were issued to him under the laws of this state. This action concerns only the deposits made by the deceased with the defendant, a savings bank of this state. The complaint contains three distinct causes of action. The first is upon an account which the deceased opened with the defendant upon which there was due on the 1st day of January, 1899, the sum of $1,300. It is alleged that the deceased, for reasons and purposes of her own, caused the deposits to be made in the name of Margaret Brown, that being an assumed and fictitious name, and intended to represent the deceased, and no other person. It appears from the record that the defendant has paid this deposit, and hence it is not involved in the present judgment. The other two causes of action are based upon two distinct and separate accounts opened by the deceased with the defendant, aggregating, on the 1st day of January, 1899, about $2,000. The first of these accounts was opened on January 3, 1882, and the deposit was made by the deceased ‘in trust for son Thomas,’ the deceased stating to the bank at the time that this son was 9 years of age. On August 22, 1883, she opened the other account, and the deposit was made in her own name, ‘in trust for son John,’ she stating to the bank at the time that this son was 11 years of age. The defendant delivered to the deceased pass books representing these two accounts, which remained in her possession during her life and were found upon her person after her death. The plaintiff alleges that the beneficiary in each of these trusts was not a real person, but an assumed name or a fictitious person, and was intended to represent the deceased, and no one else. It is also alleged that the deceased had no son or any child or children.

The defendant answered, alleging that it had tendered to the plaintiff the moneys due upon the account first stated, and as to the second and third causes of action it alleged that the accounts were opened by the deceased and the deposits made in trust for the benefit of her two sons named, and denied that their names were assumed or fictitious or intended to represent the deceased, and, further, that they were real persons, and proper and necessary parties defendant in order to authorize a complete determination of the questions involved in the action. The defendant thus tendered an issue with respect to the plaintiff's right to recover upon the two trust accounts. That issue was whether the beneficiaries named were real or fictitious persons.

The question of fact tried and determined by the jury was whether these accounts, so far as they appeared upon the books of the bank to be in trust, were fictitious and intended for the sole benefit of the deceased. Upon this issue the plaintiff gave some proof, which was circumstantial. It appeared that several of the other pass books representing accounts in other banks stated that the accounts were in trust for various other persons, some of whom, it seems to have been conceded, were fictitious. Proof was given to the effect that none of the neighbors of the deceased, during the long period of 27 or 28 years, had ever seen or known Hunter, the supposed husband, or any children of the deceased. This action was commenced about 5 years after her death, and it appears that during the interval no husband, child, or relative had appeared or made any claim to her estate. It appeared from the uncontradicted evidence that the account for the benefit of the son Thomas was opened on January 3, 1882, and the deceased then stated that he was 9 years of age, while the account for the son John was opened on August 22, 1883, and she then stated that he was 11 years of age. It is consequently argued that Thomas, who was 9 years of age about 2 years previous, must then have likewise been 11 years of age. Moreover, it will be seen from these dates, and from the ages of the children given by the depositor at the time of the deposits, and her own age at the time of her death in 1895, as established by the uncontradicted evidence, that she must have been about 52 years of age at the time of the birth of John and Thomas, if such an event ever occurred. These facts and circumstances, with others which appear in the case, were competent for...