Hamilton v. Caplan

ALPERT, Judge. This case involves a dispute between appellant, Ida Hamilton (sister of the late Joseph C. Gilbert), Donald Caplan (personal representative of the Estate of Joseph C. Gilbert), and Bebe Gilbert (surviving spouse of the late Mr. Gilbert) over the ownership of three promissory notes and the interest accrued thereon. Joseph C. Gilbert died in the summer of 1983. Three demand notes were found in his office after his death.

Two notes were made by the Palm Management Corporation. These notes were made on November 27, 1981, in the amount of $196,083.57, and on December 1, 1981, in the amount of $54,173.06. Each bore an interest rate at the prime rate charged by Morgan Guaranty Bank. The third note was made by Dominique Restaurant in the amount of $100,000.00 dated August 13, 1982.

This later note bore an interest rate at 1% over the prime rate charged by Security National Bank. All three notes were made payable to Ida Hamilton. All interest on the notes was paid to Joseph Gilbert, who deposited it in a checking or savings account that he held jointly with Ida Hamilton. Joseph C. Gilbert was an accountant.

His accounting firm prepared tax returns, maintained books and records for various persons and businesses, prepared documents such as promissory notes, gave investment advice, and invested funds for others. Gilbert handled the affairs of several clients, among whom was his sister, Ida Hamilton. The evidence is uncontradicted that Gilbert prepared his sister’s tax returns, maintained her financial records, paid some bills out of their joint account, and wrote and held for safekeeping his sister’s last will and testament. After Joseph Gilbert’s death, Ida Hamilton sought a declaratory judgment that the notes and accumulated interest were her property and that the money that she had ⁵⁷⁰ deposited in a joint account with Joseph Gilbert for investment purposes be repaid to her.

As support for her assertion that the notes and bank account belonged to her, Ida Hamilton presented evidence that the decedent had (1) placed the notes in her name, (2) deposited the interest in their joint account, 1 (3) spoken of the notes’ existence as an investment made on her behalf, 2 and (4) otherwise demonstrated an intent that the notes were made for her. In a separate suit, the estate of Joseph C. Gilbert contested Mrs. Hamilton’s claim, alleging that since the notes were found in Joseph C. Gilbert’s office there had been no “delivery” and hence no “gift” of the notes. The estate interpreted the existence of the joint account between the decedent and appellant Hamilton as purely for the convenience of the decedent. The estate further asserted that Joseph Gilbert provided the entire funding for the notes, such that the estate sought to recover not only the notes and interest paid thereon but also the balance of the joint accounts.

In yet a third suit, Bebe Gilbert, the surviving spouse of the decedent, also contested Hamilton’s position. The widow alleged in that suit that the money loaned in return for the notes came solely from a joint account between herself and her husband. She further alleged that since one-half of all the money in the marital account belonged to her, she was at least entitled to half of the money represented by the notes and half the interest accrued thereon. She asserted, however, that she was properly entitled to the entirety of the notes and interest because her husband had an oral ⁵⁷¹ agreement with her that any investment made from their joint account would be shared equally between the spouses.

The three cases were consolidated for trial. At trial, a special verdict was requested and the jury found as follows: i. That Joseph C. Gilbert during his lifetime did not make a gift of the promissory notes to Ida Hamilton. ii. That there was an oral agreement between Bebe Gilbert and the late Joseph C. Gilbert that any “investment” made by Joseph C. Gilbert from funds from a joint account in the names of Joseph C. Gilbert and Bebe Gilbert would be shared equally between them. iii.

That the joint bank accounts between Ida Hamilton and Joseph C. Gilbert were jointly owned by them with rights of survivorship. iv. That Ida Hamilton gave Joseph C. Gilbert $16,-870.00 to invest on her behalf. Based on these jury determinations, the court entered a declaratory judgment as follows: i. That Bebe Gilbert and Donald Caplan, personal representative of the estate of Joseph Gilbert, each own a one-half interest in the notes and accrued interest thereon. ii.

That Ida Hamilton was the sole owner, by survivor-ship, of any funds remaining in the joint accounts in the names of Ida Hamilton and Joseph C. Gilbert. iii. That Section 8-103, Estates and Trusts, Annotated Code of Maryland, barred Ida Hamilton from recovering investment funds for failure to file a claim within the six month period prescribed by the foregoing statute. Appellant, Ida Hamilton, appeals from the lower court’s determination with respect to judgments i and iii above and raises the following questions: 1. Where the undisputed evidence disclosed that decedent was an accountant who prepared appellant’s tax returns; paid her bills when she was away or disabled; maintained at his office all of appellant’s financial documents, Last Will and Testament and records, did the ⁵⁷² Court err in refusing to instruct the jury that although to perfect a gift there must be “delivery,” that delivery may be “constructive” such that it is not always necessary that a donor physically deliver the gift into the possession of a donee? 2.

Did the Court err in refusing to instruct the jury that there may be an inter vivos gift of a remainder interest, such that a donor may retain the benefits of an item of gift for life, but irrevocably give the remainder to his donee upon death? 3. Did the Court err in failing to rule as a matter of law that an irrevocable gift of the notes was made to the appellant since appellant was the sole named payee, and only she or a party authorized by her could cash the interest checks, extend or negotiate the notes, or demand payment, and hence from the time the notes were made all of the rights and entitlement in the notes irrevocably vested in her? Neither Joseph C. Gilbert while he lived nor his estate could lawfully collect the notes once they were put into appellant’s name or substitute another payee for appellant. 4. Did the Court err in failing to permit appellant’s testimony concerning what decedent told her about the notes and their arrangement concerning certain money appellant invested with decedent on the basis that the “Dead Man Rule” barred such testimony, where every party and witness other than appellant gave testimony about what the decedent had said to them or said to others? 5.

Where both parties to a joint checking account were authorized without consent or restriction of the other party to withdraw funds or issue checks, can one party to the account claim an ownership interest in a gift purchased by the other party for his sister with funds from the account, where it is proven each party contributed equally to the account? 6. Where appellant gave money to her brother Joseph C. Gilbert to invest for her, does such money become a ⁵⁷³ part of Joseph C. Gilbert’s estate upon his death, such that appellant is required to make claim under Section 8-103, Estates and Trusts, Annotated Code of Maryland? I. Constructive Delivery Appellant asserts that the trial court erred in refusing to instruct the jury on the issue of constructive delivery of the notes. We agree.

Although trial courts are not required to present instructions to the jury in support of the unfounded theories of litigants, it is error to refuse a requested instruction where sufficient evidence was presented to generate a jury issue. Levine v. Rendler, 272 Md. 1, 13 , 320 A.2d 258 (1974); Schaefer v. Publix Parking Systems, 226 Md. 150, 152-53 , 172 A.2d 508 (1961). The burden of establishing all the elements of a gift is cast upon the donee. Dorsey v. Dorsey, 302 Md. 312, 318 , 487 A.2d 1181 (1985).

The standard of proof is clear and convincing evidence. Id. at 318 , 487 A.2d 1181 , citing Pomerantz v. Pomerantz, 179 Md. 436, 440 , 19 A.2d 713 (1941). In the case sub judice, appellant presented sufficient evidence to generate a question of fact as to whether the notes were delivered to her from the decedent. We explain. “The validity of the alleged gifts depends upon the legal sufficiency of the deliveries.” Schenker v. Moodhe, 175 Md. 193, 196 , 200 A. 727 (1938).

Delivery may be actual or constructive, but in either case must place the gifted property beyond the dominion and control of the donor and within the dominion and control of the donee. Id. at 196-97 , 200 A. 727 . The Court of Appeals explained: To be valid, a constructive delivery must not only be accompanied by words sufficient to show a donative intent, but must be of such a character as to completely divest the donor of dominion and control over the donation and to place it “wholly under the donee’s power.” Id. at 197 , 200 A. 727 (citations omitted). The cases in which constructive delivery has been found involved circumstances where the donor thought he had ⁵⁷⁴ done all he could do to relinquish dominion and control over the donated item.

Malloy v. Smith, 265 Md. 460, 466 , 290 A.2d 486 (1972). The concept of constructive delivery evolved from the gift of items too difficult to deliver physically, such that the only practicable way to deliver the item was symbolically. See In re Brown’s Estate, 343 Pa. 230 , 22 A.2d 821, 825 (1941). In Brooks v. Mitchell, 163 Md. 1, 11-12 , 161 A. 261 (1932), Judge Offutt explained: To be valid, a constructive delivery must not only be accompanied by words sufficient to show a donative intent, but must be of such a character as to completely divest the donor of dominion and control over the donation and to place it “wholly under the donee’s power” (Pomeroy, Eq.

Jur., sec. 1149), as where the donor gave to the donee a sealed package informing him that it contained bank books, money (Turner v. Estabrook, 129 Mass. 425 ); an insurance policy (First Nat. Bank v. Thomas, 151 Md. 250 , 134 A. 210 ); the key to a trunk (Jones v. Selby, Prec. Ch. 289, Coleman v. Parker, 114 Mass. 30 ; Cooper v. Burr, 45 Barb. (N.Y.) 9); the key to a safe deposit box accompanied by an order for its delivery (P hipard v. Phipard, 55 Hun. 433 , 8 N.Y.S. 728 ; Thomas’ Admr. v. Lewis, 89 Va. 1 , 15 S.E. 389 ); the key to a cupboard (Goulding v. Horbury, 85 Me. 227 , 27 A. 127 ); a trunk, box, or other receptacle containing a savings bank deposit passbook.

Vandermark v. Vandermark, 55 How.Prac. (N.Y.) 409; Turner v. Estabrook, supra. Other cases illustrating the application of the rule may be found collected in the notes to Pomeroy, Eq. Jur., sec. 1149, 18 L.R.A. 170 ; 40 A.L.R. 1255 .

The rule as thus stated is subject to this qualification, that, while the delivery may be constructive, “it must be as nearly perfect and complete as the nature of the property and the attendant circumstances and conditions will permit” (28 C.J. 692), and many of the cases in which the courts have held a constructive delivery insufficient turn upon that qualification. ⁵⁷⁵ See also Schenker v. Moodhe, 175 Md. 193, 197-98 , 200 A. 727 (1938). This concept of constructive delivery was later expanded in Miller v. Hospelhorn, 176 Md. 356 , 4 A.2d 728 (1939), to include situations in which delivery of title was disputed. The Miller court stated: What constitutes delivery depends largely on the intent of the parties. A constructive delivery is sufficient if made with the intention of transferring the title.

It is not necessary that delivery should be by manual transfer; and this rule is recognized by the definition of delivery in the negotiable instruments law as the transfer of possession, “actual or constructive.” Each case, when it turns on the facts, must stand on its own facts. 7 AmJur. page 809. The final test is, did the indorser of the notes do such acts in reference to them as evidenced an unmistakable intention to pass title to them and thereby relinquish all power and control over them. Id. at 367 , 4 A.2d 728 (emphasis added). Delivery to an Agent In this case, the decedent purchased the notes with his money and put them in his sister’s name.

Thereafter, he held the notes in his office. Clearly, there was no actual delivery of the notes to Ida. A constructive delivery may have been accomplished, however, if the decedent intended to transfer an interest in the notes to her and held them as her agent. The existence of an agency relationship is a question of fact which must be submitted to the factfinder if any evidence tending to prove the agency is offered.

Flanigan & Sons, Inc. v. Childs, 251 Md. 646, 652 , 248 A.2d 473 (1968). The burden of proving the agency is on the party alleging its existence, who must show the nature and extent of the agency as well as its existence. Purnell v. Union Trust Co., 167 Md. 85, 99 , 173 A. 1 (1934); Schear v. Motel Management Corp. of America, 61 Md.App. 670 , 487 A.2d 1240 (1985). In the case sub judice, appellant presented ⁵⁷⁶ sufficient evidence to generate a question of fact as to whether the decedent constructively delivered the notes to her by putting them in her name and holding them as her agent.

See, e.g., Bryan v. Bartlett, 435 F.2d 28 (8th Cir.1970) (delivery of note to payee’s agent is equivalent of delivery to payee); Eklund v. Eklund, 76 Cal.App.2d 389 , 173 P.2d 50 (1946) (where donor retains custody and control over insurance policy as the agent of the donee and donor does not vest in himself any interest or title to the insurance policy, gift is valid); Giles v. Giles, 94 S.W.2d 208 (Tex.1936) (where grantee signed and delivered note payable to grantor’s brother, grantor had no authority to cancel or release such debt to brother without brother’s consent, notwithstanding that the grantor’s death antedated the due date on the note); Hunt v. Holmes, 64 N.D. 389 , 252 N.W. 376 (1934) (where father bought realty intending it to be a gift for his daughter, delivery of vendor’s deed to father, naming daughter as grantee, was sufficient to pass title to daughter); Pederson v. Jordan, 177 Wash. 379 , 32 P.2d 114 (1934) (where, unbeknownst to principal, agent lent principal’s funds to himself and his wife and executed a note in favor of the principal which was kept by agent, there was constructive delivery of the note to the principal); Lynch v. Lynch, 124 Cal.App. 454 , 12 P.2d 741 (1932) (gift is valid where donor exercises custody and control over the gift of corporate stock as the donee’s agent); Pohl v. Fulton, 86 Kan. 14 , 119 P. 716 (1911) (requirement of delivery is satisfied where donor retains possession of gift as trustee). See generally 6 J. Reitman, H. Weisblatt, W. Schlichting, T. Rice and J. Cooper, Banking Law § 113.03 (1986) (delivery to payee’s authorized agent is equivalent to delivery to the payee). Appellant stated that the decedent prepared her taxes, held her last will and testament, generally managed her financial affairs, and occasionally made investments on her behalf. These facts may support the conclusion that the decedent acted as his sister’s agent with respect to the purchase and delivery of the notes in question.

Appellant ⁵⁷⁷ testified that although she did not know the location of the notes, or even their amount, until after the decedent’s death, she was aware that her brother had made investments for her to protect her if anything should happen to him. To wit, her brother told her that there were some notes made for her. 3 We note that conflicting evidence was presented on the issue of the decedent’s agency. The notes in controversy were not found among the files the decedent kept for the appellant. 4 Nor did the decedent list the notes among appellant’s assets in the accounting he did for her. Rather, the decedent listed the notes among his own assets.

In addition, the decedent’s wife and the decedent’s estate presented evidence that the notes were made in Ida Hamilton’s name merely to prevent Mr. Gilbert’s employees from knowing the true nature of the decedent’s investments and were never delivered to her because Mr. Gilbert never intended a gift to be made of them. The fact that the notes were placed in Ida’s name is some indicia of the fact that the decedent may have intended to make a gift. The decedent unquestionably acted as the appellant’s agent in handling her financial affairs, and there is sufficient evidence to believe that he may have held the notes for her as her agent. Accordingly, we hold that the judge improperly instructed the jury when he refused appellant’s request that the jury be instructed on the law of constructive delivery.

Enough evidence was presented that the jury should have been asked to consider whether a constructive delivery 5 was made to Ida by her brother in ⁵⁷⁸ his capacity as his sister’s agent. See Flanigan, 251 Md. at 652 , 248 A.2d 473 .

II

Inter Vivos Gift of Remainder Interest Appellant next contends that the trial court erred in refusing to instruct the jury that the decedent may have made an inter vivos gift of a remainder interest at death, such that the decedent retained the benefits of the note during his life, but irrevocably gave the remainder to the appellant upon his death. We agree. Appellant has presented sufficient evidence to generate a jury issue as to whether the decedent made an inter vivos gift of a remainder interest in the notes. The law in Maryland is clear, “if there is a proper delivery, the donor of a gift can relinquish title to a vested remainder and at the same time retain a present interest in the property----” Register of Wills v. Sterling, 264 Md. 638, 640-41 , 287 A.2d 771 (1971) (emphasis added).

In this case, conflicting evidence was presented on the issue of whether the notes were ever delivered to the appellant 6 and the issue of constructive delivery was never put to the jury. Accordingly, on remand, we direct the trial judge to instruct the jury to consider, first, whether a gift was delivered and, second, the character of that gift. The evidence before the court could support a finding that a gift was made of the notes or that a gift inter vivos of a remainder interest was made. See Baltimore Retort and Fire Brick Co. of Baltimore City v. Mali, 65 Md. 93, 98-99 , 3 A. 286 (1886), wherein it was said: If the father had declared that he held or would thenceforth hold the shares of stock in trust for his daughter, then, perhaps, equity would seize upon and enforce such trust for the benefit of the donee, although voluntarily created.

But here there is no such declaration of trust attempted to be established, and the assignment produced and relied on is altogether inconsistent with any ⁵⁷⁹ idea of a trust in favor of the daughter. The assignment professes to convey the stock to the daughter absolutely, but the gift was left imperfect for the want of an actual transfer of the stock on the books of the corporation; and equity, as we have seen, will not lend its aid to consummate the gift, by directing the transfer to be made, (citations omitted) (emphasis added). Compare Boethe v. Dennie, 324 A.2d 784, 788 (Del.Super., 1974): It is true that a donor can during his lifetime create an inter vivos trust under which he can retain certain rights, such as income rights, during his lifetime. Bodley v. Jones, Del.Supr., 27 Del.

Ch. 273 , 32 A.2d 436 (1943); Highfield v. Equitable Trust Co., [Del.Supr., 4 W.W.Harr. 500 , 155 A. 724 (1931)], supra; Robson v. Robson’s Adm., Del.Ch., 3 Del.Ch. 51, 62 (1866). However, in order to create such a trust, where the creation of the trust is without legal consideration, the formal requirements for a valid gift must be found. Robson v. Robson’s Adm., supra. The donor must have divested himself of some interest which he formerly had in the property, and the divestiture must have been absolute at the time of creation of