Brooks v. Mitchell

Ob-btjtt, J., delivered the opinion of the Court. The principal questions presented by this appeal are (1) whether a gift causa mortis of a. deposit in a savings bank can be effected by the mere delivery to the donee of the passbook issued by the bank to the donor as evidence of his title to the same, where the donor sufficiently indicates an intention of assigning or transferring the fund to the donee but executes no written order for the transfer or assignment thereof; and (2) whether, assuming that such a gift can bo validly made in that manner, the evidence in this case is sufficient to support a finding that one Alton Brooks, late of the City of Baltimore, deceased, did in fact give to Judith Mitchell, the appellee, a fund deposited to his credit in the savings department of the Baltimore Trust Company. The circumstances out of which those issues arise are these: Alton Brooks was a laborer, unmarried, frugal, careful, and industrious, with a horror of coming to old age and physical infirmity without adequate means of support. Consequently, by thrift and careful management, at his death he had accumulated what for him was a substantial estate, which included a deposit of $5,600 in the savings department of the Baltimore Trust Company. lie was born some fifty years ago in King and Queen County, Virginia, and he, his brother_ Junius Brooks, Judith Mitchell, and Stephen W. Mitchell, her husband, all grew up as children together in the same neighborhood.

Alton came to Baltimore to mend his fortunes and to live in 1916, Mr. and Mrs. Mitchell followed shortly afterwards, and at or about the same time Junius also moved there. These four former Virginians kept up in their new surroundings their early friendship, met occasionally, and from time to time Alton and Junius, neither of whom was married, visited the Mitchells at their home. The Mitchells had before coming to Baltimore seen perhaps more of Alton than of Junius, for when they were first married they boarded with him at the home of an uncle of Mrs. ⁴ Mitchell at West Point, Virginia, although the connection between all of them was close and of long standing, Mrs. Mitchell’s grandfather having married the mother of Alton and Junius Brooks over forty years ago. The nearest of kin of Junius and Alton Brooks at the time of Alton’s death were a half-sister and two nieces of a deceased sister.

Alton appears from the record to have been a somewhat aloof and reserved man, with few connections and no intimates in Baltimore, and when, in 1930, he was stricken with what proved to be a mortal disease, he turned to Mrs. Mitchell for help; and she accepted him as a boarder. He came to her home on the first Monday in May, 1930, after he had been for a time at the Johns Hopkins Hospital. He remained there.until June 25th, 1930, when he entered the Baltimore City Hospital, where he remained eight weeks. He returned on August 20th and stayed until October 26th, when he entered the West Baltimore General Hospital.

He came back to her home on November 10th and died on No-^ vember 12th, 1930, and was buried on November 11th, 1930, from an undertaking establishment. The cause of his death was cancer of the stomach, and the course of that disease, at least from the time he entered Mrs. Mitchell’s home in May, 1930, until his death, appeal’s to have been steadily progressive, and by October it had reached a point where consciousness of its inevitable outcome could not well be avoided. After his death a black satchel containing a passbook for a deposit in the savings department of the Baltimore Trust Company was found in the Mitchell home, and at his request that book was delivered to Junius Brooks, who later administered oh his brother’s estate. Mrs. Mitchell stated that it was delivered to Brooks in the belief that it would be returned to her, and, upon his failure to return it, she, on December 27th, 1930, filed the bill of complaint in this case against Junius Brooks, administrator of the estate of Alton Brooks, in which she prayed that the deposit be declared to be her sole property, that the trust company be enjoined from paying it to-any other person, and that Junius Brooks be. ⁵ enjoined from withdrawing said deposit or transferring or otherwise disposing of the bank book pending the case.

The theory upon which that relief was asked was that Alton Brooks had on October 25th, 1930, mortis causa given the bank book and the fund which it represented to the complainant. The defendant answered, the case was heard upon bill, answer, and evidence, and on December 10th, 1931, the court decreed the deposit to be the property of Mrs. Mitchell and directed the administrator to pay it, together with accrued interest, to her. The appeal is from that decree. The important issues of fact are: (1) Did Alton Brooks deliver to Mrs. Mitchell the savings bank deposit passbook for the purpose of making a gift to her of the fund which it represented?

(2) Did she actually take possession of the book during his life? and (3) Did he at the time of such delivery believe that his death was imminent and inevitable ? The direct evidence relating to the delivery of the bank book is not contradicted, but there was some conflict in the evidence as to certain corroborative circumstances attending the transaction. Mrs. Mitchell'testified that, as soon as Alton Brooks died, she notified Junius, his brother, and that he shortly after that came to her house; that on that visit she opened the black suitcase which had belonged to Alton and which at the time was in her bedroom; that she unlocked it in his presence with a key in her possession, and found in it passbook Ho. 20110, issued by the Highlandtown Branch of the Baltimore Trust Company, evidencing a savings account in the name of Alton Brooks in the amount of $5,600 deposited on April 30th, 1930, which contained the following rules and by-laws: “The Bank Book must be presented when money is deposited or withdrawn. The acceptance of the Bank Book shall constitute an acknowledgment on the part of the depositor of notice of these rules and regulations and his agreement to be bound thereby.

When the first deposit is made, the depositor shall sign a signature card subscribing to the rules and regulations of the Savings Department of the Bank, and the depositor ⁶ and his legal representatives shall he bound by said rules and regulations and any amendments thereto. Money on deposit may be withdrawn by the depositor, or his legal representative, on presentation of the Bank Book and a proper order. Ho withdrawals may be made by cheek. Ho assignment or transfer of this Bank Book or of the account represented thereby need be recognized by the Bank unless the consent of the Bank shall be first obtained, and a memorandum thereof entered therein.” She further testified that after his brother’s funeral Junius returned to her home and asked for'Alton’s bank books and his watch.

She told him she claimed the bank book of the Baltimore Trust Company deposit, but, when lie said that he could not administer the estate unless she delivered it to him, she let him have it, that Alton had another bank book which he kept in a square box which he took to the hospital with him, and that after his death she discovered that book and gave it to Junius also. She further said that with the bank book in the black satchel was an insurance policy made out for the benefit of Junius, and that he took with him before the funeral, and that she had told Junius that Alton had told her that it was in the- suitcase, and that he wanted his funeral expenses paid out of it. Stephen W. Mitchell, husband of the complainant, said that, on the night before Alton went to the West Baltimore General Hospital, he, his wife, and his daughter Jeanette were in his room, that there were at the time in the room a brown suitcase and a black suitcase, and that Alton pointed to the black suitcase and said: “ ‘Judith, I am giving you the black suitcase and that suitcase contains a life- insurance policy. If I die, take that and bury me.

Everything else you find in the suitcase is yours.’ (The Court): Hid he have the key to the suitcase? (The Witness) : Ho, sir, he did not have it. (The Court) : Do you know where the key was ? (The Witness): Ho, sir, my wife had the key to the suitcase in a little pocketbook.

Q. (By Mr. Levin) : Were you ⁷ present when she got the key ? A. Tes, sir, I was. Q. When was that ?

A. That was in the afternoon after he died. Q. I mean when he gave her the key. Were yon present when he gave her the key ? A. Ho, I wasn’t present when he gave her the key.

Q. After this statement was made by Mr. Brooks, what did your wife do, if anything? A. Well, after he gave her the suitcase, she took the suitcase and put it in her bedroom. Q. Who took it out of Alton Brooks’ room? A. She did, my wife took it out.

(The Court): In his presence ? (The Witness) : Yes, sir, in his presence. She carried it out and put it in her bedroom. (The Court) : He saw her when she did it ?

(The Witness) : Yes, sir, it was right before him.” And that on the following morning he said to the witness that he had given his wife the suitcase and that she understood everything and knew just what to do. Jeanette Mitchell, the daughter, referring to the same suitcases, gave this version of the transaction: “Q. Did you see those suitcases ? A. Yes, sir. So did Mr. Alton Brooks see them, because they were right on the side of the wall and he could look right at them from the bed.

One was a brown suitcase and the other a black one, large suitcases. My mother was trying to cheer him up; was rubbing his head and doing everything she could for him, and he said, ‘Judith, you have been wonderful to me.’ He said, You are the onliest friend I have in the world, but for you I would not want to live.’ He said, ‘See that black suitcase there, everything in there, all except the life insurance policy, is yours; and if I never come back home again you will be well repaid for whatever you did for me.’ My mother rubbed his head and said, ‘You should not do that, I will appreciate the suitcase,’ and she took it out of the room and put it in her bedroom. Q. When did she take it out ? A. When we left the room about twenty minutes later.

Q. Did you see anything of a key ? A. Well, the key was in a dresser drawer in the room. He told my mother to look in there and get the key to it. That was said at the time he gave her the suitcase.

She went and got the key and took the suitcase and stuck it in her room because she thought it was hers then.” ⁸ The deposition of Richard J. Small, a nonresident, taken before one of the standing examiners of the court, was offered and admitted in evidence over objection. The objection was that the petition for taking the testimony in that manner was not supported by affidavit, but, as the petition does not appear in the record, and as it does appear that the appellant was present when the testimony was taken, and cross-examined the witness, it cannot be said in this court that its admission was error. Waters v. Waters, 35 Md. 546 . Small is a seaman, and at the time he testified, was a mate on a vessel trading between Boca Grande and the West Indies.

He testified that’ he had known Alton Brooks for sixteen or seventeen years, and had first met him at King and Queen County, "Virginia; that he had seen him several times after he came to Baltimore and twice in the last year; that the last time he saw him was in his (Alton’s) room at Mrs. Mitchell’s home on or about October 26th, 1930; that on that occasion Alton told witness that he was suffering from cancer of the stomach; and then the following colloquy occurred: “I said, ‘You have right smart money, why don’t you spend some of this money on yourself in the condition you are in, with the disease you have you are not liable to live very long/ and he said, ‘Dick, I have a little money in that suitcase lying in the corner; I have a bank book and an insurance policy there.’ He didn’t say how much it was and I didn’t ask him. Then he said, ‘If anything happens to me there is the insurance policy, I want to be buried by that, and the rest of the money I want Ju to have/ and I said, ‘Who do you mean?’ and he said, ‘Judith/ and I said ‘Judith,’ and he said, ‘Yes.’ He said, ‘I want her to have it, because she has been so good to me, looking out fotr me,’ and he said, ‘I don’t wunt Junius to have that money there in that satchel.’ ’’ Dr. Herman Seidel, his attending physician, referring to the period when Alton was in the West Baltimore General Hospital, gave this testimony: “Well, as things went on, he realized that his end was apparently near, and he wanted tot go back to the Mitchell home. He wanted to die home, as ⁹ he called it-, and he spoke to me — when I told him it is very difficult for Mrs. Mitchell to handle him, it is almost impossible, his stomach had to be washed several times a day, we fed him rectally, something we could not do at his home, and it would be just a hardship on Mrs. Mitchell. He told me, he says, ‘That is all right, Mrs. Mitchell will be well compensated for her troubles, and she can do all the work for me and I would rather die home’.” Van Lou Walton also came from King and Queen County, and had known Alton “practically” all his life, and knew Junius Brooks, Alton’s brother.

He saw Alton for the last time on the Sunday before Labor Day, 1930, at- Mrs. Mitchell’s home, and he testified that on that occasion he had this conversation with him: “I said, ‘Boy, what are you going to do with your money? You ain’t spending it on yourself and you can’t carry it with you?’ He said, ‘Well, I want to keep it as iong as I live and when I die I want Judith, Mrs. Mitchell, to have it.’ I said, ‘Junius might come in to get it.’ lie said, ‘Ho, sir; I don’t want him to have it.’ He also said, ‘before I would see him have it, I would burn it up’.” While that testimony was not contradicted, there was some conflict bel ween the testimony of Junius Brooks and his witnesses, and that of Mrs. Mitchell and certain of her witnesses, as to such corroborative circumstances as that Mrs. Mitchell at once notified Junius Brooks of her claim to' the bank book, and the precise place in her house at which the suitcase was found when she opened it- in the presence of Junius. But the conflict was not of such a character as to weaken the effect of that which had been stated, and upon the whole testimony we have no hesitation in accepting the conclusion of the chancellor, that Alton Brooks did in fact give the suitcase containing the savings bank deposit passbook of the Baltimore Trust Company and the insurance policy to1 Mrs. Mitchell, and that he intended her to have the book as her property. It was also sufficiently shown that Mrs. Mitchell took possession of the satchel containing the bank book during Alton’s ¹⁰ life.

She, her husband, and her daughter all testified that she took it from Alton’s room on the night of October 25th, 1930, when he gave it to her and placed it in her bedroom, and the only contradiction is that of Junius, who said that, when he saw Mrs. Mitchell immediately after Alton’s death, ' it was in a little hall right outside of Alton’s door. All of these witnesses were more or less interested, and there is nothing in the record to require the court to assume that any of them was entitled to greater credence than another, and, as there was nothing in the circumstances to give one version greater probative force than the other, the chancellor was justified in accepting that of the complainant, her husband, and her daughter. The remaining issue of fact was whether at the time he made the gift Alton was conscious that his death was imminent and inevitable. As to that, while there was some conflict in the evidence as to their existence, on the whole case, facts may be accepted as established which justified the conclusion that at that time he did know his condition and that the gift was a consequence of that knowledge.

Dr. Seidel, when asked whether on the occasion of a visit to him on the night of October 25th, Alton knew that he would shortly die, said, “He was beginning to realize it then and he realized it more while at the hospital.” Small testified that on October 26th, 1930 (apparently an earlier date), Alton told him that he had cancer of the stomach and that the “Doctor thinks I will not live very long.” Stephen W. Mitchell said that on the morning of the 25th Dr. Rutledge had told Alton that he had cancer and that he could do nothing for him, and, after Dr. Rutledge left, Mitchell, referring to his proposed visit to the hospital the next day, suggested that it “might be a big benefit to him,” but Alton replied that he “didn’t think he had much longer to' live and he would just as soon be in one place as another,” and on the same evening, in the presence of Jeanette Mitchell, he said that he did not think if he went to the hospital he would ever come home again. Those statements, considered in connection with his physical condition at the time, permit no ¹¹ rational inference ether than that on October 25th, 1930, on the eve of his last visit to a hospital, he was aware of the fatal nature of his disease and that his death,was near. The only opposing evidence is that of Mrs. Shannon, who saw him on October 16th, when he told her he had “ptomaine poison,” but expected to take Thanksgiving dinner with her. But her testimony is not inconsistent with that of complainant’s witnesses as to his state of mind on October 25th, 1930.

It is apparent that towards the end he grew rapidly worse, for ten days after his talk with Mrs. Shannon he went to the hospital, where he remained until he returned tp Mrs. Mitchell’s home to die two days