Coburn v. Shilling

Adkins, J., delivered the opinion of the court. This is a contest between Carrie E. Coburn', the niece, and Elenora J. Shilling, the daughter of Joseph Dunn, deceased, for the possession of a savings bank deposit. On November 25th, 1919, the Hopkins Savings Bank of Baltimore filed a bill in interpleader in which it is alleged: That on March 31st, 1919, a money deposit account was opened with said bank in the name of Joseph Dunn and a deposit book was given therefor, which account on September 26th, 1919, amounted to $1,840; that on or about September 25th, 1919, the defendant, Carrie E. Coburn, came to-the bank and stated to one of the tellers that the said Dunn desired that she should have the right to withdraw funds from the said account; that she was told what was the customary form of such an account, and that the effect was not only to make it subject to the order of either of the named persons, but to entitle the survivor to the balance standing to the credit of the account upon the death of either of the joint owners; that she then declared that the said Dunn did not intend that such balance should belong to her in the event of his death but to his daughter, the defendant, Elenora J. Shilling, and only meant her, the said Carrie Coburn, to have the right to withdraw funds from said account for his use and benefit during his lifetime and not for her own use and benefit either during his lifetime or after his death; that notwithstanding said declaration, the said Carrie Coburn procured from the bank a signature card in the trust form for joint owners, and on September 26th, 1919, presented to the bank a signed order from the said Dunn directing the account then standing in his name to be withdrawn, and a new account to be opened in the name of Joseph Dunn, in trust for ¹⁷⁹ himself and Carrie E. Coburn, joint owners, subject to tbe order of either, the balance at the death of either to belong to the survivor, and filed with the bank signature cards for said account; that witbin a few days thereafter the said Bunn died and thereafter the said Elenora made claim to the balance of said account, and on the same or the next day the said Carrie demanded payment of it, and afterwards brought suit for the recovery of said deposit. The bill prays that said claimants be required to interplead.

Both answered; Elenora averring that the sole object of tbe said Dunn was to enable tbe said Carrie to draw out money when it was needed for bis use-, and that the said Carrie was a mere trustee for him and for the said Elenora, for whose use, upon his death, the fund was designed; and that she claims title to said fund by virtue of the trust in her favor, and also that she is the duly appointed administratrix of said decedent, he having died intestate; and Carrie averring that her claim is -based upon a deposit book of said bank, and upon certain relationships with said Dnnn. The Circuit Court of Baltimore City passed an order that Carrie E. Co-burn be made party plaintiff and Elenora J. Shilling be made party defendant in said ease, whereupon proper pleadings were filed by the parties reasserting their respective claims, and testimony was taken.J It appears from the testimony that Joseph Dunn was taken sick at his rooms on Hanover Street about two weeks before his death with bilious dysentery, and that three days before he died he was taken to Mrs. Coburn’s home on Fulton Avenas by her mother, Mrs. Taylor. Tn this home, besides Mrs. Cobum and Mrs. Taylor, were Mrs. Coburn’s daughters, Mrs. Caldwell, and her grand-daughter Mrs. Joyner. The doctor testified that from the first be was critically ill and that- in addition to dysentery be bad arterio-sclero-sis; that his mind was apparently clear; that he talked rationally about his illness; did not talk with him about business affairs.

Witness advised Mrs. Coburn the first day at her house that her ¹⁸⁰ uncle was criticall}' ill, and did not think he could hiive told her, as she testified, that he would likely pull through. The dooetor had not known him before these visits. Mrs. Coburn testified that when her uncle’s second wife died, in March, 1919, he came to her house in great distress and she went to his rooms and prepared her body for burial. “While I. was getting her clothes, I found, wrapped in a towel, a shot bag. I felt it and it felt like it had money in it.

I took the bag from the drawer, and unwrapped it from the towel; and I went to Uncle Joe and showed him the bag. When I opened the bag, I found rolls of money in it in rolls of $100 each. I think there were $2,000 in that bag.” This money was deposited in the Hopkins Place Savings Bank; witness advised him to deposit it there and went with him to the bank; this was about March 31st, 1919; it was deposited in his own name; her mother had an account there. The witness further testified that oh September 25th, 1919, at her uncle’s request, she wrote and presented to the teller at the bank the following paper: “I, Joseph Dunn, would like my account that was placed in the Hopkins Place Savings Bank, March 31, 1919, changed to be paid or drawn jointly to or by my niece, Mrs. Carrie E. Coburn, 1636 N".

Eulton Avenue, Baltimore, Md., and myself. “Joseph Dunn.” In reference to this order witness was asked on cross-examination: Q. “Don’t you remember telling him (the teller) that you wanted the money placed in your uncle’s name and your name, and he asked you why, — if you were the only surviving heir, and don’t you recall saying to him, U am not his only survivor, he has one child; but he wants the money put in my name so that he can withdraw it from time to time, and that the balance is to go to his daughter (Mrs. Shilling) ; and the reason why he does not want to put it in her name is so that her husband can’t get possession of it’? (The Court) : Did you make the statement in question to the gentle ¹⁸¹ man at the hank A. Yes, sir. Q. You remember1 telling him that you were not his only survivor, that he had one (laughter, that he wanted the money deposited in your name so he could withdraw it from time to time1, and that the balance was to go to Mrs. Shilling, hut that he did not want it in her name so that her husband could not get possession of it ? A. Xo, sir, I didn’t say that, that is not the way I said it. 1 went to the bank, and my daughter was with me.

I went to the bank and presented the order and the bank book. I said that my uncle, — he read the order before I said anything, then he said ‘This is drawn up in good form; but your uncle will either have to come down here himself or sign some papers that I will give you.’ Then he said: ‘Why does he want this changed this way?’ I said, ‘Because he wants it changed so that I can draw it whenever he wants it drawn.’ Then he said, ‘Why don’t lie come down himself?’ I said, ‘Well, he is sick and can’t come down now.’ Then he said, ‘Are you his only heir — has he any other relatives ?’ I said, ‘Xo, he has a daughter.’ Then he said, ‘Why don’t he want it turned over into his daughter’s name?’ I said, ‘Because he don’t want her to know anything about this money, and he don’t want her to have anything to do with it; and another thing, her husband is a, drunkard and never has supported her; and another thing was that she had never done anything for him.’ Q. (The Court) : What did you ever notice there about Mrs. Shilling ? A. There was no congeniality.

Q. Did you ever see her do anything for him? A. Yes, sir. on two occasions. Q. What, if anything, did she do for him on these two occasions that you saw her there ? A. Slie worked with me, — we both did things that time.

We both worked in the rooms, — cleaned and dusted the rooms. Q. Did you ever know her to go there except on these two occasions!?1 A. That I can’t say — I don’t know1. Q. How often did you visit your uncle? A. One, two or three times a week.

T would go down in the morning and clean up for ¹⁸² him. * * In the evenings he would come up to supper; .nearly every Sunday Unele Joe came up to my house to supper.’ ” Witness further testified that her uncle signed the forms furnished by the bank and the account was changed to the trust form set out in the bill of interpleader on September 26th, 1919, about noon, and that her uncle died the same day at 4.25 p. m. Speaking of her relations with her uncle after the death of his wife, Mrs. Coburn testified that he had no one to take care of him, and she used to go down there every week,— sometimes two or three times a week, and clean up for him; that she would clean up his home, change his beds, wash .and iron his clothes; that before his wife’s death, during- the five years of their married life, she visited them probably seven times a year; that she knew her uncle’s financial condition before the money was found, and had given him money. It appears further from Mrs. Cobum’s testimony on cross-examination that she filed a petition in the Orphans’ Court on January 14th, 1920, in which she alleged that Mrs. Shilling was the illegitimate child of Joseph Dunn; that she advertised for the nieces of her uncle’s deceased wife, “because I felt that, not having issue, they were her proper heirs, if I couldn’t get the money which he wanted me to-have.” Mrs. Carrie McO. Caldwell, the daughter of Mrs. Coburn, testified that she was at her mother’s when Mr. Dunn was brought there; that the .-doctor said he was not critically ill, hut that he needed quiet and care, and that he would pull through; that her mother is a trained nurse; that she was with her mother at the bank on both occasions mentioned by her ; that Mr. Frey, the teller, said the order they first presented was all right but it was not sufficient to change the account; that- he gave them two slips, marked them and told them to get Mr. Dunn to sign them, and to bring them back the next day; that when they showed them to Mr. Dunn he ¹⁸³ was very much incensed because the bank bad not accepted his order; that they didn’t tell him about tbe slips until he had calmed down about a half or three-quarters of an hour later — “We showed him the slips and the place to sign”; that he signed them and said: “I hope that will be all right now.” “Q. Did you read them to him?

A. We didn’t have to-read them to him, he could read them himself. Q. You didn’t read them to him ? A. He read them himself.” Witness further testified that her uncle had a horse-radish stand in the Hanover Market for a number of years before his death and that he attended it up to a week before he died; that Uncle Joe said to her: “You know I have a little money in bank now, but don’t mention it to the- Shillings if they come here, I don’t want them to know I have it”; that she said to him, “If Ellie and Charlie come here, Uncle Joe, I won’t say anything to them about it, because it is none of my business.” Tbis witness’s version of what took place at the bank is shown by the following questions and answers: “Q. When you went to the bank tbe second time, tell bis-Honor whom you saw ? A. This gentleman who is in court.

(Indicating Mr. Frey.) Q. That is this young man, Mr. Frey? A. Yes, sir, and another man came up a few minutes after we arrived. Q. Do you recall then whether Mrs. Shilling’s name was mentioned ? A. Not at first. * * * We passed the old book and the slips through the window, and this gentleman took them; and he said, ‘Is this the way your Uncle Joe wishes it?’ Q. He didn’t say Uncle Joe,’ did he?

A. No, sir, he said Mr. Dunn. * * * He asked my mother if she was his only heir and mother said no>, that there was a daughter. He wanted to know why he didn’t want it turned, over to the daughter, and mother said she had never been a daughter to him, that he didn’t care for her to know that he had the money, that he didn’t want her name on it because be didn’t want her husband to get it, as her husband was a drinking man; and that both of them bad been nothing to ¹⁸⁴ him. While he was at the house nothing- was said to him about putting* it in his daughter’s name, or about his son-in-law, because he seemed to be incensed, for some cause or other, against the daughter.” The witness further testified that her uncle was not a man of means; that her mother helped him out, gave him money, on several occasions; that his attitude towards her mother and grand-mother and all their family was very affectionate. Witness was asked what they did with the bank book after the account was changed, and she answered: “WTe went home to the house, and after we had been there about an hour,— after we had straightened up about Uncle Joe, attended to him, gave him his medicine and nourishment,' — then mother took the bank book and gave it to him.

He looked at it, and then said, ‘That is all right, Honey, take this, it is yours and put it away.’ At the time he seemed better, very much brighter; they were all in the room laughing and talking and he was conversing with them” “Q. Now, Mrs. Caldwell, what was your uncle’s attitude towards Mrs. Elenora Shilling ? A. To my mind it was very distant. * * * The first day that he was there my mother asked him if he wanted her to send for Mrs. Shilling, and he said that he did not. The first time that she came there, I said that she was there, and he simply said, ‘All right.’ He never addressed her in an affectionate way, and he never acted as affectionately towards her as he had towards us. Q. Bo you know why your mother didn’t turn the book over to him while Mrs. Shilling was there?

A. Yes, sir; we had almost sworn on oath to him not to let her know he had the money. Q. This order was prepared by your mother, you knew that, didn’t you? A. Yes, sir. Q. You were asked whether it was read to your uncle ?

A. He read it himself. A. But he didn’t write it himself, did he ? A. He asked her to write it, and I thought that was because he had palsy in his hands, and he was nervous. • Q. He had palsy in his hands? A. I didn’t say that he had palsy.

I said that I thought he had it. Q. Who ¹⁸⁵ dictated it? A. lie did. Q. That is her own dictation?

A. He told her what he wanted put into it. He saw her writing it, and he read it. Q. lie read what she wrote ? A. He read what she wrote out loud.

Q. He said he had a little money, —did he make use of that expression, — that he had a little money in bank? A. I don’t remember making that statement. Q. Don’t you remember making a statement about him having money in bank? A. I remember making a statement about the bank book.

Q. Did be say anything about having a little money in bank? A. Ho, sir.” Referring to witness’s statement that her uncle said he didn’t want to see Mrs. Shilling, this question was asked: “Q. As a matter of fact, you folks didn’t want him to see her, did you. A. Ho, sir.” As a sample of the sort of testimony this witness gave in regard to the relations between Mrs. Shilling and her father, the following questions and answers are quoted: “Q. How, I want you to tell his Honor, — you were cross-questioned by Mr. Lawrence about Mrs. Shilling kissing her father — I want you to tell the court what she said about her father just after he died ? A. We were sitting in the bedroom just above where her father was laid out, and we were talking about him.

She said, ‘He never was a father to me, I never really believed he was my father.’ I asked her why she thought that, and she said 'because' her father had kept a bad house. Q. What do you mean by that ? A. A house of ill fame, and his second wife was the mistress of it. That was when her father was lying dead.” That she ever said any such thing was positively denied by Mrs. Shilling.

In view of the previous testimony of the witness, the following answers to questions by the court are somewhat remarkable : Referring to the visit to the bank on September 25th, the court asked: “Q. And then it was that you were given the blanks that would put it (the first order) in form, and you took them back to the house? A. Tes, sir. Q1. When were they signed ?

A. The next morning. Q. Did you with- ¹⁸⁶ bold them from him until the next morning ?' A. He knew that we had them. Q, He knew that you had them? A. Yes, sir.

Q. When did you show them to him, about, what time? A. It was some time after Uncle Joe was fixed and we had given him his nourishment, — then we got them. Re asked for ihem in fact.” Mrs. Mary B. Taylor, Mrs. Coburn’s mother, testified that she was eighty-five years old and Mr. Dunn, her brother, was •eighty-two at the time of his death; that she lived with her daughter about fifteen years; that her brother frequently came to her daughter’s house, almost always took dinner there on Sunday, and was very affectionate towards them all; that on the morning of September 24th, 1919, she found her brother sick in his room; “I went down there in the morning, and I seen he was in very bad condition. He asked me to take him up to Carrie’s and I got a taxi.

I got a taxi and took him there myself, and then I went for the doctor.” “Q. What was Joe’s condition when you got him home from Hanover Street ? A. He was bad off. Q. When you saw him was he able to walk and get into the taxi ? A. The man who drove the taxi helped him down into the taxi.

I went there, I guess, between half past seven and eight o’clock in the morning. He was lying on the lounge. I rapped at the door and be managed to get it open for me, and he was so glad to see me. Q. What did he call you?

A. He called me ‘Sis.’ I was his sister. Q. Did he have any trouble getting to the door? A. He was on the lounge right next to the door, and be dragged bimself to tbe door. As soon as I got in, be said, ‘Ob, take me up to Ca,rrie;s, I am so sick.’ Yes, sir, be asked if I came down with the intention of talcing him home.

Q. He didn’t say anything about taking him to Ellie Shilling,’s, did he? A. No, sir, he didn’t want to. go there. She never did anything for him,- — she didn’t treat him good. Q. What do you mean by ‘Didn’t treat him good,’ tell us of some instances of how she treated him ?

A. He didn’t like Mr. Shilling, and he didn’t like the way that his daughter neglected ¹⁸⁷ him. She very seldom went to see him. I remember one time for a whole year she never went near him. When his wife was sick she never went near him.” This witness testified that when Mr. Dunn’s second wife died he came to Mrs. Oobum’s and said he had nothing to bury her with, that he hadn’t any money. “My daughter told him not to worry, as she would see that his wife was buried; she was buried from Mrs. Shilling’s bouse.” On tbe subject of the bank book, her testimony was as follows: "Q. Did you see him give the bank book to Mrs. Coburn?

A. Yes, sir. Q. Tell us as near as you can, wbat Joe did on the day that he died. If you can recall, tell us everything that happened as near as you can. A. The trouble seemed to be about having some papers fixed up at the hank —that seemed to be on his mind.

Q1. How did he want it fixed ? A. He wanted to leave it to my daughter so that she could attend to everything, and she went to the hank with a note. It seems as if there was some trouble about it, and she brought a paper up for him to sign, and he signed it.

Then, 1 think, she went back to the bank again. Q. Did you see him sign the papers? A. Yes, sir; 1 was in the room.” Then, in reference to what occurred after Mrs. Coburn and her daughter returned from the bank on September 26th: “Q. Did you see any bank books there then ? A. She handed the hook to him — she had it in her hand.

He took it, looked at it, and gave it back to her. Q. Did you hear him say anything when he gave it to her? A. He told her, ‘Keep- that, that is yours, keep it.’ Q;. Do you know your brother’s attitude towards Mrs. Shilling ?

A. I can only say this: whenever he would come up and I would ask him if Ellie had been up to see him, he would say, ‘No.’ Q. D.id you ever see Ellie there at his place? A. Not while his wife was sick; but after she died, she was down there. T was, down there, too.” This witness further testified about the work done by Mrs. Cobum cleaning up ber uncle’s rooms and washing for him. ¹⁸⁸ At this point William Cook, the undertaker, was put upon the stand to testify as to the whereabouts of a Mr. Penn, one of his employees, who prepared the body of Mrs. Dunn for burial. “Q. Do you think he could be here tomorrow ? A. I could not say, I don’t know where he is.

Q. He was here yesterday? A. Yes, sir. He disappeared last night, and his wife hasn’t seen him. His wife telephoned me at one, three and four o’clock this morning' to> see whether I had heard anything from him.” This testimony is important only as a sidelight on the only witness who corroborates Mrs. Caldwell, the daughter of the appellant, in the statement that Mr. Dunn did not want his daughter to know anything about the money.

Later on he appeared without a formal summons at the request of appellant and was examined out of order after appellee had begun her testimony. Penn said Mrs. Coburn arranged for the funeral and became responsible for the bill; that Mr. Dunn told him they were looking for the deed to the cemetery lot and “they found this big sum of money. He didn’t know anything about it being in the house”; that Mr. Dunn counted out of this money enough to pay the1 funeral 'bill and paid it himself. “A lady and a gentleman were coming up the steps (I didn’t know who they were at that time, but latea’ learned that it was Air. and Mrs. Shilling). He took the bag of money and sat on it, and said, U don’t want them to know anything about the money.’ They went into the kitchen and shut the door, and he told Airs.

Coburn, U don’t want them to have anything to do with it, they are nothing to me. I don’t, want them to have any of it.’ ” The remaining witness for the appellant was Airs. Isaiah E. Joynes, her grand-daughter. Referring to the incident of the handing of bank book to Mrs. Coburn, Mrs. Joynes said: “'Uncle Joe had just gotten up. as I came by, — he had been using the commode.

Aly grandmother handed him the book — he had just- gotten off the commode, and I think he was sitting on the side of the bed, but I won’t be sure about ¹⁸⁹ that ; hut I know that he was sitting up in bed. My grandmother gave him the book, lie looked it over, and be said, ‘All right, Honey, take it and put it away.’ Q. Did you talk to your uncle any on the day that he died ? A. Yes, sir, while 1 was sitting there in his room before he died. Q. What was his talk about ?

A. He only smiled, — I asked him how he was, and he said he felt all right, — ‘that was the only answer that I got from him.” On eross-eramination this witness varied her direct testimony as to what Mr. Dunn said when he handed the hook to Mrs. Coburn by making it: “It is all, Honey, take it and put it away.” She happened to he passing the door at the time and heard this. Mrs. Elenora Shilling, testifying in her own behalf, said she was forty-seven years old and lived with her husband and two children and her mother-in-law. Joseph Dunn was her father. The two