Kozlowska v. Napierkowski

Pattisoh, J., delivered the opinion of the Court. The appellee, Jan Mapierkowski, on May 29th, 1931, had on deposit in his name, with the St. Casimir Building & Loan Association of Baltimore City, the sum of $5,000. At that time, though married, he was not living with his wife, against whom he had instituted proceedings for an absolute divorce. She answered the bill and filed a cross-bill asking for a like divorce from him.

The case was heard, and the bill of each was, on March 31st, 1930, dismissed. On the 18th of April, 1930, the appellee went to live at Mo. 516 South Duncan Street, the home of Bronislawa Kowalska, who in the bill filed herein is said to have been a widow. Thereafter, on May 29th, 1931, the appellee, with Bronislawa Kowalska, went to the St. Casimir Building & Loan Association and withdrew the said $5,000 from his account, and upon his direction the money was deposited in said association in the name of Bronislawa Kowalska, and she was given a bank book showing the deposit of $5,000 in her name. On June 26th, 1931, $500 was drawn from this account by Bronislawa Kowalska and paid upon a mortgage then resting upon the property at 516 South Duncan Street, owned by her.

On August 22nd, 1931, $300 was withdrawn by. her upon this account. It is not definitely shown what disposition was made of this money; but the record discloses that money was drawn from time to time to purchase furniture for the house in which she and the appellee lived, and this money may have been used for that purpose. Later, on September 1st, Mrs. Kowalska drew upon this account for $2,025.50 to make a payment upon property at Mo. 617 South Ellwood Avenue, bought at that time, the title to which was placed in her name. When the Ellwood Avenue property was bought, a loan was granted to Mrs. Kowalska ⁶²² for the sum of $1,500, secured by a mortgage on that property; and on November 3rd, 1931, the mortgage was fully paid off with a check for $1,150 drawn on said account.

On July 20th, 1932, Bronislawa Kowalska died, leaving as her only heir her daughter, Wanda Kozlowska. Emil T. Mallek was appointed administrator of the estate of Bronislawa Kowalska, at whose death oply $615 remained on deposit in the building and loan association in the account in her name. On August 1st, 1932, the appellee, Jan Napierkowski, filed iris bill alleging therein that Wanda Kozlowska, the heir, and Emil T. Mallek, the administrator, were about to make a demand and collect from the building and loan association the balance of the account, $615, standing in the name of Bronislawa Kowalska, and had threatened to evict him from the fee simple property at 617 South Ellwood Avenue, which he had occupied as his home since its purchase; and in the prayer of his bill he asked that the $5,000 deposited by him in the name of Bronislawa Kowalska in the building association “be decreed to have been held by her in trust for her own and his use, with the unused balance payable to the survivor, and the said fee simple property >617 S. Ellwood Avenue be fully imposed with the said trust, and the leasehold property 516 S. Duncan Street to the extent of $500 of the said trust fund invested therein.” 'The bill alleged, in addition to the facts stated, that on May 19th, 1921, the appellee’s wife “deserted and deprived him >of his home, and ever since that date he boarded in other homes until April 18th, 1930, when he went to live in the home of the late Bronislawa Kowalska, who was then a widow”; that the appellee “and the said Bronislawa Kowalska intended to marry so soon as he obtained a divorce from his said wife, and meantime he withdrew all his savings, amounting to $5,000.00, from Saint Casimir’s Building and Loan Association, Incorporated, on the 29th day of May, 1931, and on the following day he deposited the said sum with the said building association' in the name of the said Bronislawa Kowalska upon the understanding and agreement among them that the said sum of money was to be held by the ⁶²³ said Bronislawa Kowalska in trust for her own and his use until after their marriage and by the entirety thereafter.” Wanda Kozlowska and Joseph Kozlowska, her husband, and Emil T. llallek, administrator, the defendants below and appellants in this court, answered the bill. In their answer they admitted the deposit of $5,000 of klay 30th, 1931, in the building’ and loan association in the name of Bronislawa Kowalska, buf¡ did not deny that it was a transfer to her of the appellee’s account in said association • made upon his direction.

The answer likewise admits the withdrawals and the disposition of the amounts as stated in the bill. With the answer, a demurrer was filed, but it does not appear from the record that any action was ever taken upon it. Upon petition subsequently filed, the building association was made a party defendant in the proceedings. Evidence was heard by the court upon the bill and answer, and at the conclusion of the evidence a decree was passed in which it was ordered and decreed: (1) That the building and loan association pay unto the appellee or his attorneys therein named the sum of $615 on deposit in said association; (2) the appointment of the appellee’s attorney,, Adam S. Gregorius, as trustee to convey unto the appellee the property Ko. 617 South Ellwood Avenue, “and to transfer and assign unto the said Jan Kapierkowski to the extent of a $500.00 cash interest therein” the leasehold property Ko. 516 South Duncan Street, “the remaining interest in the said leasehold property to be and remain vested in Emil T. klallek, Administrator”; (3) that the administrator be “enjoined from replevying or in any other manner interfering with the possession” by the appellee of the household furniture and contents of his present home at 617 South Ellwood Avenue; and (4) that the defendants pay the costs of the proceedings.

It is the contention of the appellants that the evidence in the case establishes a completed gift from Jan Kapierkowski to Bronislawa Kowalska of the $5,000 deposited in her name upon his direction in the building and loan asso ⁶²⁴ ciation; or, if it should be found that a trust was thereby created, as alleged in the bill, such trust was contrary to public policy and one that a court of equity will not lend its aid to enforce, but will deny all affirmative relief to any of the parties, and will leave them in the same situation in which they have placed themselves. The appellee, on the other hand, contends that it is not only a trust, but it is a trust that a court of equity would enforce. It is not denied in the answer that the $5,000 involved in this case was the property of Jan Hapierkowski until it was transferred by his direction to Bronislawa Kowalska, nor would a denial of such fact, if made, be supported by the evidence in the ease. Adam M. Jaworski, the secretary of the St. Casimir Building & Loan Association, testified that on May 29th, 1931, there was a balance of $5,000 to the credit of the appellee in that association.

On that day both the appellee and Mrs. Kowalska came to the office of the association, and the appellee said he wished to have his account changed from his name to hers; whereupon he made out a cheek to Jan Hapierkowski for that amount, and the latter then and there indorsed it, and it was delivered to Mrs. Kowalska, who, on the following day, left the check with the witness, and the account was opened in her name. The witness testified further as follows: “He asked me to transfer the name in her name, and at first I made a remark, ‘Are you married?’ And of course I did not get no answer, and the answer that she gave me was that the former husband she was married to she did not harm him, and she would see that he would not lose and.no harm would befall him. Those are the words she used at the time the money was transferred.” To the question, “Did you ask him whether he wanted his name on the book ?” the witness answered, “In a way I did.” “Q. What did he tell you ? A. He told me he would rather have it in one name for the present, and the money was deposited in her name only.

Q. Did he tell you why he wanted it put in her name. A. Ho.” When the court suggested that “there was a printed form for joint ownership but it was not filled ⁶²⁵ out?” the witness said, “Ho, the man (Jan Hapierkowski) did not want that done at that time.” Upon cross-examination, the secretary of the association was asked: “It was your understanding she could do anything she pleased for this money ? A. That is what I was told. That was why it was transferred in her name.

It was so she could do what she pleased with the money.” There was nothing said or done at that time indicating an agreement between the parties by which a trust of the character mentioned in the bill was intended to be created. The entry on the books of the association was in the nature of an .absolute gift. If a trust was created, it must be found that its creation was established by other facts showing the existence of an agreement by which it was the intention of the parties to create a trust. “Whether or not a trust has been created in any given case is, in the last analysis, a question of intention. Ho particular words are necessary to create a trust, and trust relations will be implied when it appears that such was the intention.

The subject of the deposit being personalty, the trust may be created and proved by parol.” Stone, Admr., v. Nat. City Bank, 126 Md. 231, 238 , 94 A. 657, 659 ; Foschia v. Foschia, 158 Md. 69 , 148 A. 121 ; Coyne v. Supreme Conclave, 106 Md. 54 , 66 A. 704 ; Snader v. Slingluff, 95 Md. 356 , 52 A. 510 ; Smith v. Darby, 39 Md. 268 ; Clark v. Callahan, 105 Md. 600 , 66 A. 618 ; 39 Cyc. 51. As the existence of a trust depends upon the intention of the parties, we must consider the evidence in the case in order