Brewer v. Bowersox

Per Curiam: — 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 ⁵⁸² 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.

(Decided February 8th, 1901.) Decree affirmed with costs above and below. 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 to show that the relation of tenancy by the entireties, though apparently 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 $ x ,800, were surrendered by Mr. Bowersox, and a new ⁵⁸³ certificate for $1,924 (which included interest) was issued, payable to • Jacob or Emily J. Bowersox, and was delivered to him 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, “the business 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 Jacobs 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, Januar}' 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 ⁵⁸⁴ 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 a barrier which woidd preclude the relief she seeks being granted.” 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 ⁵⁸⁵ 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 she claim 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, only by 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 a locus poznitentice, and a locus poznitentice is always reserved when the alleged donor may ⁵⁸⁶ at any moment withdraw the fund from the bank. * * * A delivery of the bank-book, or of the certificate of deposit with an intent 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, “Posssession 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, with the intention to part with the ovonership and to make an irrevocable gift of the fund, and an acceptance of it by the donee, 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