Hileman v. Hulver

Barnes, J., delivered the opinion of the Court. Melvin H. Hileman (Mr. Hileman), a retired Baltimore & Ohio Railroad employee, died in 1964 survived by William C. Hileman, Harvey N. Hileman, Carol Mannick, Dolores A. Twigg, Erma Hovatter, Mrs. Leslie J. Beal and Bonnie Hileman (plaintiffs-appellants), and by Marjorie Hulver (defendant-appellee or Mrs. Hulver). Prior to his death Mr. Hileman ⁵²⁹ maintained a savings account at the local B & O Credit Union, Cumberland, Maryland in the amount of $937.92. This case presents the issue of whether a valid and effective gift inter vivos of Mr. Hileman’s savings account was made to Mrs. Hulver.

Mr. Hileman’s other children maintain that no valid gift was consummated and that they should each therefore be entitled to share with their sister in the proceeds of the savings account. Mr. Hileman’s name appeared on the pass book in account No. 360, and the Credit Union held in their file a signature card with the name of the deceased and that of his daughter, Marjorie Hulver. Mrs. Hulver’s name was placed there following the divorce of Mr. Hileman from his former wife, whose name had appeared on the signature card. The signature card was used by an insurance company, Cuna Mutual, which paid benefits to all beneficiaries listed thereon. 1 Cuna Mutual is an affiliate of the Credit Union.

The signature card was also used by the Credit Union to indicate to whom the savings account would go upon the death of the employee. No other words were used on the card so as to show a trust arrangement. 2 Following the change of names on the signature card from Mr. Hileman’s former wife to his daughter, and three or four months before his death, 3 he wrote a letter to his daughter explaining what he had done. In November of 1963 Mr. Hileman moved into her home and at that time he gave her the pass book to his savings account and said: “Here, keep it, you will need it.” There was no written assignment of the savings ⁵³⁰ account, nor any notice of transfer given to the Credit Union. Printed on the first page of the pass book was the following provision: “No payment will be accepted or paid out at the office without this pass book.

Where payments are forwarded by mail or otherwise, the book should be presented for posting.” Mr. Hileman was admitted to the hospital on December 23, 1963 and he died of cancer on February 13, 1964 at the age of 61. After Mr. Hileman’s death Mrs. Hulver, as sole beneficiary of his railroad retirement benefits and insurance, received $4,500.00. This payment was not contested by any of the appellants in any proceeding. On November 16, 1964 Mrs. Hulver presented the pass book to the Credit Union and received their check for $1,583.53 representing $937.92 in the savings account and $645.61 due under the Cuna Mutual insurance policy.

The appellants requested a stop payment on the check and filed a petition for declaratory judgment in the Circuit Court for Allegany County. As we have already indicated in this opinion, the appellants do not claim a share with their sister in the Cuna Mutual Insurance proceeds, they maintain only that they should share in the $937.92 which constituted the proceeds of Mr. Hileman’s savings account. The trial court found that Mr. Hileman had made a valid and effectual gift inter vivos to his daughter, Marjorie Hulver. We agree with that determination.

The principle is well established that every element necessary to establish a valid gift, whether inter vivos or causa mortis, must be explicitly and convincingly proved, especially where the alleged donee attempts to assert his claim after the putative donor’s death, and there is danger that he may be acting fraudulently. See Schilling v. Waller, 243 Md. 271 , 220 A. 2d 580 (1966); Garner v. Garner, 171 Md. 603, 612 , 190 Atl. 243 (1937); Whalen v. Milholland, 89 Md. 199, 210 , 43 Atl. 45, 50 (1899). No fraud, however, is suggested in this case. The appellants admit that Mrs. Hulver was the sole object of Mr. Hileman’s bounty.

They claim only that there was insufficient delivery to constitute a present gift inter vivos of the Credit Union savings account and that Mr. Hileman had intended that Mrs. Hulver would succeed to the fund at his death, and not during his lifetime. In Brooks v. Mitchell, 163 Md. 1 , 161 Atl. 261 (1932), after ⁵³¹ a thorough review of the Maryland cases our predecessors held that the delivery of a savings account pass book, accompanied by sufficient evidence of donative intent, transferred the right to the deposit represented by that book. It was also held in Brooks that so long as there is delivery, the expressions of donative intent may be made by parol and there need be no written assignment, nor notice to and assent of the depository bank. See Jackson v. Jackson, 206 Ga. 470 , 57 S. E. 2d 602 (1950); Busteed v. Cambridge Sav.

Bank, 306 Mass. 9 , 26 N. E. 2d 983 (1940); Dellepiane v. Hynes, 83 Cal. App. 604 , 257 Pac. 180 (1927) ; In re Antkowskis’ Estates, 286 Ill. App. 184 , 3 N. E. 2d 132 (1936) ; Speirs v. Spanko, 7 N. J. Super., 421, 71 A. 2d 395 (1950); Walker v. Eisenberg, 184 N. E. 2d 465 (Ohio App. 1962). See also 4 Corbin on Contracts § 916, pages 670-672 (1951 ed.); Annot., Gift of savings deposit by delivery of pass book, 84 A.L.R. 558 .

The fact that a donee may wait until after his donor’s death to attempt to withdraw the fund given to him will not obviate the effect of a valid gift inter vivos, Brannan v. Eliot Five Cents Sav. Bank, 211 Mass. 532 , 98 N. E. 572 (1912) ; Stacks v. Buten, 141 Wis. 235 , 124 N. W. 403 (1910). Brooks v. Mitchell, supra, dealt with the question of what delivery would be sufficient to make a gift causa mortis of a savings deposit. Its rationale, however, may be applied to gifts inter vivos.

Delivery, to be sufficient, must be the same in both cases. The accompanying expressions of donative intent determine whether the transfer was to be inter vivos or causa mortis, conditional or unconditional. See Corbin on Contracts, supra. Judge Offutt, speaking for the Court in Brooks , said: “An indispensable requisite of a gift, whether mortis causa or inter vivos, is that there be a delivery of the donation [citations omitted], which may be actual or constructive * * *.

But in either case its effect must be to completely divest the donor of any dominion or control over it and to transfer such dominion and control to the donee [citations omitted].” 163 Md. at 11 , 161 Atl. at 266 . Delivery of the pass book in Brooks transferred a present right to the fund which it represented since a provision of the con ⁵³² tract of deposit made between the donor and the bank provided that a depositor could not withdraw funds without presentation to the bank of the pass book; thus the requirement was satisfied that “there could be no valid delivery of a gift mortis cmsa unless there was an actual tradition of it, or of some token or evidence thereof, the loss of which completely deprived the donor of any control over it * * ( 163 Md. at 14, 15 , 161 Atl. at 267 ). See also Pomerantz v. Pomerantz, 179 Md. 436, 440 , 19 A. 2d 713 (1941) ; Curley v. Wolf, 173 Md. 393, 397 , 196 Atl. 285 (1938). It is suggested that in this case the pass book did not control the deposit although the Credit Union by-laws required that the book must be presented before any withdrawal could be made, since a representative of the Credit Union testified that Mr. Hileman would be allowed to withdraw from his account without the pass book because he was known to them. “Q. You said the deceased could withdraw the money at any time.

Would you not require the presentation of the passbook? A. With him he was well known to us and not necessarily. He would have to sign what we call a journal voucher that he did receive the check. “Q. He could withdraw this entire account without the savings book and you would not ask a question where the savings book was? A. We would ask him to bring it in but he would sign a release.” A savings deposit generally creates the relationship of debtor and creditor between a bank and its depositor.

The by-laws printed in the pass book, including the rule that the book nuist be presented before withdrawals may be made, become part of a contract between them. Savings Bank v. Appler, 151 Md. 571 , 135 Atl. 373 (1926). See Jones, Adm. v. Hamilton, Adm., 211 Md. 371, 382-383 , 127 A. 2d 519 (1956); People’s Bank v. Turner, 169 Md. 430, 433 , 182 Atl. 314 (1936). By-laws like those printed in a pass book are upheld as necessary for the protection of banks.

Commonwealth Bank v. Goodman, 128 Md. 452 , 97 Atl.