Brewer v. Bowersox

48 A. 1060, 92 Md. 567, 1901 Md. LEXIS 139

Opinions

We are of opinion that the decree appealed from in this case should be affirmed for the reasons given and upon the authorities cited in the opinion of the Court below.

We adopt its opinion sent up with the record, and direct that it be reported in full. In addition to the authorities cited, we refer to the case of Estate of William A. Parry, 188 Pa. St. 33; 49 L.R.A. 444.

Decree affirmed with costs above and below.

(Decided February 8th, 1901.)

PEARCE, J., dissented and delivered the following opinion in which JONES, J., concurred:

I fully agree with so much of the opinion of the majority of the Court in this case as holds that "Upon the face of this certificate a tenancy by the entireties was created, with all its legal incidents, and that as a consequence, upon the death of the husband, the plaintiff became as the survivor of the two, entitled to the fund, unless there is something in the record toshow that the relation of tenancy by the entireties, thoughapparently existing, did not in reality exist."

I concur, also, in the approval of the rulings of the Circuit Court upon the exceptions to the testimony, but in spite of the very able opinion of the Circuit Court, adopted by the majority of this Court as its opinion, I am not able to concur in the affirmance of the decree, for the reasons which it seems proper for me to state as briefly as possible. The history of the transactions leading up to this controversy is this.

In April, 1895, Jacob Bowersox, a citizen of Ohio, sold certain real estate in Ohio for $2,000 cash, he being then eighty-five years of age, and went with his wife, then sixty-seven years of age, to visit a daughter of his first marriage then residing in Michigan. In March, 1896, he deposited in the City National Bank of Kalamazoo $2,800, and received therefor five certificates of $500 each, and one for $300, all made in his name. Two of these $500 certificates were paid upon his indorsement, June 3rd and 4th, 1896, and the amounts were received by his daughter, Clara Abbott, living in Michigan, and constituted, as appears by the second codicil to his will made November 21st, 1866, part of an advancement of $2,925 made by him to her. On June 28th, 1897, the other four certificates aggregating $1,800, were surrendered by Mr. Bowersox, and a new certificate for $1,924 (which included interest) was issued, payable to Jacob or Emily J. Bowersox, and was delivered tohim by the president of the bank. This form was used at Mr. Bowersox' request, in order, as he stated to the president, that either one could get the money on it, without the presence or endorsement of the other. On the only two occasions when Mr. and Mrs. Bowersox were at the bank, when the original, and also when the substituted deposit was made, the president says, "thebusiness was done with Jacob Bowersox." The last certificate came back to the Kalamazoo bank July 5th, 1898, endorsed by Mrs. Bowersox and by the Frederick Town Savings Institution through which it was thus paid. On June 23rd, 1898, Mr. Markell, assistant secretary of the Frederick Town Savings Institution, states that Mrs. Boxersox came to the bank and gave him for collection a certificate of deposit on the City National Bank of Kalamazoo, dated June 28th, 1897, for $1,924, for which he gave her a credit slip for $1,981.72 (including a year's interest) in the name of Jacob or Emily J. Bowersox. When asked if she wished it to be at interest she replied she would wait till she had made up her mind what she would do with it, and about the middle of July, 1898, she asked to have it transferred to the interest account, and the certificate in question was issued and delivered to her. It does not appear either from Mr. Markell's testimony or her own that she gave any direction, or made any request, as to the form or phraseology of this certificate, or that she asked any information in regard to it, either before or after its issuance and delivery to her, nor is there to be found anywhere in the record, any explanation or suggestion why the peculiar form adopted was so adopted. It remained, however, in her possession, under circumstances which will be hereafter stated, until Mr. Bowersox' death, January 20th, 1899. His remains were taken at once to Ohio for burial, and having learned through Dr. McCurdy, that her husband's estate would have to be settled at his domicil in Ohio, she took to Ohio her husband's papers of value, and this certificate, which, with her husband's other valuables, she delivered to the Probate Judge temporarily, and subsequently endorsed the certificate to N.L. Brewer upon his appointment and qualification as administrator, and upon refusal of the bank to recognize the right of either claimant, these proceedings followed. It should be observed here that Mr. Bowersox, by his will, made in May, 1890, excluded one of his four children from participating in his personal estate, and gave to his wife, absolutely, one-fourth part of his personal estate and one-fifth part of his real estate; that by the first codicil, made June 13th, 1896, the wife's absolute share of the personalty was increased to one-third, and of the realty to one-fourth; and that by the last codicil made November 21st, 1896, she was made sole executrix, one of his sons-in-law having been before that named as co-executor. Also that upon the death of her sister, Mrs. Bentz, in January, 1897, Mrs. Bowersox received both real and personal estate under her will.

Much of the difficulty which is encountered in cases of this character disappears, if it can be ascertained clearly at the outset to whom the money originally belonged before it was so deposited, and it is therefore to be regretted that we cannot resort to the testimony of Jos. R. Drown, Mary J. Drown, Nelson L. Brewer, Clara Abbott and Probate Judge Wagner, much of which is directed to this question, and of which the Circuit Court says, "if the testimony adduced under these (excluded) commissions were admissible, it would show that the plaintiff had repeatedly declared that she had no right to the fund on deposit, and now in controversy; and if unexplained, would interpose abarrier which would preclude the relief she seeks beinggranted." Under the ruling upon the testimony, there is much of Mrs. Bowersox' testimony before us, as well as all the testimony of Mr. Dayton, president of the Kalamazoo bank, Mr. Markell of the Frederick Town Savings Institution, Dr. McCurdy, and Mr. and Mrs. Rhoads: and from a careful consideration of these unaided sources of information, we do not doubt that the money so deposited belonged to Jacob Bowersox. Indeed this is conclusively established by Mrs. Bowersox' testimony. On cross-examination she was asked how the $1,981.72 came into her husbands possession, and she replied, "in different ways." When asked if it did not come from the sale of his real estate, she said, "part of it did, I can't say what part." When asked what he received from this sale, she replied $2,000, and said the amount in the Frederick Town Savings Institution was a part of this sum. Nowhere did sheclaim any part of it was hers, and the inference is strong that no part of it was hers. Finally, when asked, "Had you any separate estate of your own before you came to Frederick (July 1st, 1897), and received the property your sister, Mrs. Bentz, left to you?" she answered, "No I had not. Nothing but this certificate. I had a little personal property. I mean a little wearing apparel and household effects." Nothing is here left to inference, and his ownership of the money is put beyond the pale of inquiry.

Resorting again to the language of the opinion of the Circuit Court. "It may be stated as the result of all those (the Maryland) cases, that where money belonging to one person and known to belong to him, is deposited by him in his own name and in the name of another, but subject to the order of either, and the depositor retains possession, control and dominion over the pass-book or certificate, without the production of which the fund cannot be drawn, he does not part with the ownership of the fund, and the other person becomes merely an agent of the real owner, acquiring no interest in the fund at all, and ceasing upon the death of the owner to have any authority whatever as agent. And the reason for this is apparent. The owner of the money can by his own act voluntarily part with his ownership of it, onlyby gift, payment or bequest. Such a deposit, as has just been named, is obviously neither a bequest nor a payment, for it possesses none of the characteristics of either; and it cannot be a gift to the other person mentioned in the bank-book or the certificate, because, if the depositor retains the book or the certificate, he retains complete dominion over the fund. There can be no perfected gift where the supposed donor reserves alocus poenitentiae, and a locus poenitentioe is always reserved when the alleged donor may at any moment withdraw the fund from the bank. * * * A delivery of the bank-book, or of the certificate of deposit with anintent to pass the ownership of the fund will perfect the gift and clothe the donee with an indefeasible right to the money on deposit."

And in Whalen v. Milholland, 89 Md. 206, this Court, speaking through the present Chief Justice, said, "Possession is distinguishable from delivery. There may be possession where there has been no delivery; * * * * A distinct unequivocal delivery of the book to the other person named as co-owner, withthe intention to part with the ownership and to make anirrevocable gift of the fund, and an acceptance of it by thedonee, would pass the whole interest therein to the donee. Every element of a perfected gift would then be present."

In the present case the original deposit in the Kalamazoo bank was made by the husband of his own money, in his own name alone, and he drew out and disposed of $1,000 of the amount, and each succeeding transaction, antedating the certificate in question, bears the ear-mark of the wife's agency referred to in all the cases. When the second certificate was issued by the Kalamazoo bank it was payable to the order of either, and the president says he delivered it to the husband. When the same certificate was afterwards taken by the wife to the Frederick Town bank for collection, Mr. Markell states, and she confirms him, that the deposit slip given her was issued to Jacob or Emily J. Bowersox, payable to the order of either, precisely as the certificate itself was worded. This was consistent with the theory of continued agency, and inconsistent with any claim of ownership by her at that time. When the amount, thus collected by the Frederick Town bank, was put on interest some weeks later, and the certificate in question was issued and delivered to her, then, for the first time, appears the language upon which alone her title can be sustained; and it is most significant that nowhere in her testimony does she found her claim upon the form of the certificate, but merely upon its delivery to her at that time, and her possession and control of it, as she testifies, from that date until she delivered it to the administrator, although if her rights are to be determined by the face of the certificate as held by the majority of the Court, they would have been as safe with the certificate in her husband's possession and control as in her own; and this brings us to inquire into the circumstances of its delivery to her, and the character of her possession and control within the meaning of the rule laid down in Whalen v. Milholland, supra.

Her husband was then nearly eighty-nine years of age. Mrs. Rhoads, who lived within a few doors of them for five months, says he could not walk without his wife's assistance, and that she had to feed him like a child; that it was with great difficulty he walked with her assistance two squares to the barber shop, that he was very feeble and could hardly hold the pen, on the occasion when he signed his wife's bond as executrix of her sister, and that he could then only make his mark. Mr. Rhoads testifies that his wife was accustomed to lead him to the porch and place him in a chair, and that it was necessary for her to light his cigar and put it in his mouth when he wished to smoke, and this was nearly a year before this certificate was issued. The transaction of his business by her, or by some agent, was therefore a plain necessity, and the delivery of the certificate to her by Mr. Markell can have no legal significance. As to her possession of the certificate, she testified on cross-examination that she had charge of all her husband's notes and other papers, and up to the date of this certificate, the preceding certificate and the deposit slip given for it were clearly his property, for she predicates her claim upon the last certificate alone. Her possession, therefore, of the preceding certificate, and of the deposit slip, can only be consistently referred to the same agency under which she held her husband's other papers. Consistently with this theory, and inconsistently with the theory of ownership, she took this certificate with herhusband's papers to Ohio on his death, and when asked on cross-examination why she did so, she replied, "Well, I didn't know at that time it belonged to me;" and again when asked if she did not tell Mr. Brewer it belonged to her husband's estate, she said "not that I remember. I don't know that I did;" and again when asked when she first learned that she had been misled in assigning the certificate to Mr. Brewer, she replied, "some of my friends in Ohio afterwards told me it belonged to me." These are not the acts and declarations of one who knows a gift has been made to her, and who is standing confidently upon conscious ownership and acceptance. It appears from the testimony of Mr. Fout, a clerk in the Frederick Town bank, that she knew how a deposit should be made in order to indicate absolute ownership, since in December, 1897, on coming into her estate from Mrs. Bentz, she deposited in the interest account of the same bank, $500 in her own name. If, on July 15th, 1898, she was the absolute owner of the money represented by the deposit slip, in virtue of an accepted gift from her husband, it is remarkable that she did not deposit it as she had deposited the $500, in her own name absolutely. Although the legal effect of the form of the certificate, if the effect is to be determined from its face alone, is such as I have already said would vest full title in her on his death, yet the use of his name at all, in view of her present claim, and especially in the same phraseology in that part of the certificate which shows fromwhom the money was received, as was used in the preceding certificate, is satisfactory evidence to my mind that she continued to recognize his title to the money.

Coming finally to that part of the certificate which upon its face creates an estate by the entireties, and from which alone her title is deduced by the Court, we can find no evidence whatever that her husband directed or authorized this change, or that she herself either directed or requested the use of this form, or that she knew until long after, that it had been used. The Court holds that her apparent title created by the form of the certificate must be sustained as a real and rightful title, unless it should be shown by the appellant that the certificate was so worded either by deliberate wrong, or by inadvertent error. It excludes the hypothesis of inadvertent error for want of any evidence to sustain it, and it excludes the theory of deliberate wrongfulness because where fraud is imputed, every presumption obtains in favor of innocence and good faith, and can only be overcome by full and clear proof. With the latter finding I can readily agree, but I am not able to agree with the former. I think there is sufficient evidence to sustain the theory of inadvertent error.

1st. Because I think that up to the moment of issuing the present certificate, her possession was that of agent for her husband, and no act done by the agent without the principal's knowledge and concurrence, of which there is here no evidence, could divest his title.

2nd. Because there is no evidence that she directed, or intended to have made, the change in the form of deposit from which alone a change of title could result. If she had so directed or intended, her conduct would have been tortious, and no presumption can be indulged for this purpose.

3rd. Because I think the use of the form was the act of the bank alone. What was said upon this point in Whalen v.Milholland, 89 Md. 203, is thoroughly apposite to this case, and I think conclusive. "The words, `joint-owners' were placed on the book, not because Miss O'Neill requested the bank officers to do so, and not because she thought they would, or designed they should, vest an indefensible title in her sister, but merely because the bank had adopted that form. The words were put there, not as expressing Miss O'Neill's intention, or as limiting her control over the fund, but manifestly to carry out some policy or purpose of the savings bank. They represent and stand for no voluntary and deliberate act of hers at all. In the face of these facts, whatever the import of the words might be had they been consciously and purposely used by Miss O'Neill, they certainly can be given no weight or potency."

In the present case, Mr. Markell, the secretary of the Frederick Town Savings Institution, who received the deposit and issued the certificate, was not asked and did not attempt upon his examination in chief to explain why the change in form was made, but admitted, on cross-examination, that "the institution entered this deposit received in one form, only to be paid in another form," and that he did not explain this to Mrs. Bowersox at the time, and further, that in his experience as a banker he could give no example of a similar deposit. Nor did Mrs. Bowersox in her testimony state, or suggest any reason for the change of form, nor intimate that she knew the form had been changed, until told by some of her Ohio friends that the money belonged to her. Under these circumstances we can only conclude that Mr. Markell, with the perception which sometimes becomes instinctive with shrewd and prudent bank officers, for some reasons of his own, determined so to frame this certificate as to require the assent of both parties to its payment, and thus to protect the institution against any conflict of interest.

If the words "will be paid to them, or their order" be substituted for the words "joint-owners;" the name "Jacob Bowersox" for that of "Miss O'Neill;" and the word "wife" for the word "sister" the passage reproduced above from Whalen v.Milholland, in view of the almost exact similarity of the circumstances attending the phrasology and issuing of the two certificates, fits this case as the glove fits the hand.

The additional authority referred to in the opinion of the Court (In re Parry, 188 Pa. St. 33), while fairly maintaining the legal propositions flowing from the face of the certificate alone, in nowise reflects any light upon the inquiry whether the apparent relation of tenancy by the entireties did in reality exist in the present case; since in the Pennsylvania case the proof was undisputed that the husband himself, with set purpose to create that relation, directed the letter of credit to be so worded. In the opinion of the majority of the Court in the present case the mere relation of husband and wife is made a controlling reason for determining that the apparent relation of tenancy by the entireties did in fact exist, but I am not able to regard this as a satisfactory basis for such conclusion. InGetchell v. Biddeford Sav. Bank, 94 Me. 452 (47 Atl. Rep. 895), it was urged that as between husband and wife, it should be presumed a gift was intended, when it would not be so presumed but for such relation, but the Court said "that relation is a circumstance, but not a controlling one," and refused to make such presumption.

I cannot perceive in the present case any sound reason for indulging such presumption, and for the reasons stated I think the decree of the Circuit Court should be reversed and the bill be dismissed. JUDGE JONES authorizes me to say that he concurs in this opinion.

(Filed February 21st, 1901.)