Lusby v. First National Bank

Smith, J., delivered the opinion of the Court. Appellant, Elizabeth Lusby, was disappointed when she did not receive the proceeds of a savings account at ⁴⁹⁴ First National Bank of Maryland (the Bank) upon the death of her aunt, Lottie Mack. She sued the Bank. A Baltimore City jury returned a verdict in her favor.

The trial judge entered judgment n.o.v. in favor of the Bank. We shall affirm that judgment. Mrs. Lusby’s declaration asserted “that on August 10, 1962, a joint savings account was opened by Lottie Mack and Elizabeth Lusby under Account No. 12026150, subject to the order of either, balance to belong to the survivor,” and that after the death of Mrs. Mack in 1968 the Bank refused to honor the request of Mrs. Lusby for payment of the balance of the account. There was presented in evidence a signature card with the names and signatures of Mrs. Lusby and Mrs. Mack on it.

There had been placed on it with a rubber stamp the language: “IN TRUST FOR ........... SELF AND [space] JOINT OWNERS, SUBJECT TO ORDER OF EITHER, THE BALANCE AT DEATH OF EITHER TO BELONG TO THE SURVIVOR.” The name “Elizabeth Lusby” was written to the left of the rubber stamp. 1 The names “Mack, Lottie” and “Lusby, Elizabeth” were typed at the top of the card. The typewritten name of Mrs. Lusby and the signature of Mrs. Lusby written to the left of the rubber stamp together with the legend from the rubber stamp had been stricken with a typewriter. An address of 4139 Mount-wood Road appeared.

It had been struck through in ink and replaced by the address of 402 Ringneck Ct., Reisterstown, Md. In the upper right-hand corner of the card opposite “NO.” appeared “25609”. This number appears to have had a series of question marks typed over it. Below that has been typed the number “12026150” or “12-26150”. 2 In the lower right-hand corner of the card op ⁴⁹⁵ posite the legend “Introduced By” appears “Trans from Sav. #23973”. At the bottom of the card in pencil appears “OPENED 8-10-62 CLF”.

On the back of the card there has been written in pencil “11/2/61”, without any explanation. This card is yellow. A second card, white in color, was introduced. It does not have any printing on the back similar to that on the yellow card relative to the Bank’s being authorized to recognize signatures etc., nor does it have all of the printing relative to residence, occupation, birthplace, nearest relative, “Introduced By”, etc., appearing on the face of the yellow card.

At the top has been typed “Mack, Lottie”. The rubber stamp “IN TRUST FOR ............... SELF AND [space] JOINT OWNERS, SUBJECT TO ORDER OF EITHER, THE BALANCE AT DEATH OF EITHER TO BELONG TO THE SURVIVOR” which appears on the front of the yellow card also appears. In the space between the word “AND” after “SELF” and a line below that beginning “JOINT OWNERS” appears “Lusby, Elizabeth”.

Both Mrs. Mack and Mrs. Lusby signed the card. In the upper right-hand corner appears “25609”. At the bottom of the card there is written in pencil “closed 8/10/62”. Testimony of the branch manager of the main office of the Bank indicated that the number “12” appearing as a part of the number for account No. 1226150 represented the branch of the bank.

A copy of a withdrawal ticket signed by Mrs. Mack under date of August 10, 1962, for account No. 12-25609 was placed in evidence. This was in the amount of $5,-164.62. Also admitted in evidence were a copy of a deposit ticket showing that on August 10, 1962, Mrs. Mack deposited in account No. 12-26150 the sum of $5,164.62 and a copy of the passbook for that account. This deposit ticket and the passbook were in the name of Lottie Mack only.

The name “Lottie Mack” on the deposit ticket is ⁴⁹⁶ handwritten. It appears to have been written by the same person who signed the withdrawal slip. The passbook showed the account as having been opened on August 10, 1962, with a deposit of $5,164.62. It showed interest credited periodically.

The only other transactions were a withdrawal on June 27, 1966, of $666.76 and the final closing of the account on October 2, 1968, with the withdrawal of $5,701.82. The evidence showed that Mrs. Mack died on August 19,1968. Also placed in evidence were U. S. information tax returns for the calendar years 1963, 1964, 1965, 1966, 1967, and 1968. Each of these pertained to account No. 120-26150 at the Bank.

Each was addressed: “MS. LOTTIE MACK MS. ELIZABETH LUSBY 402 RINGNECK CT. REISTERSTOWN, MD” Requests for verification of balance from the auditors of the Bank referring to account No. 12026150 dated July 16, 1964, April 20, 1965, and March 1, 1968, were also introduced into evidence.

They were similarly addressed to Mrs. Mack and Mrs. Lusby at the Ringneck Ct. address. Mrs. Lusby testified that “about a month or so after her [aunt’s] death” she went to the Bank. The record at that point is as follows: “Q. All right. And who did you see at the bank?

A. I don’t know the gentleman’s name, but I spoke to someone there, and I explained to them that I was on a joint account, and that my aunt had died, and what was the procedure that I should follow. He got the signature card and he said as far as he was concerned, there was no problem; it was a joint account, and that the money would be mine. And he asked me about the pass book. And I told him that I didn’t have it, that my aunt’s lawyer had all her val ⁴⁹⁷ uables and the pass book and so on.

But he was in the hospital and couldn’t be reached. So he told me to return to the bank with the transcript of her death, and I did that after about two weeks. And I spoke to another gentleman at the bank. It was a different one.

And he also told me the same thing, that there was no problem, that the money was in—it was a joint account, and it was in my name, and that all I need to do would be to claim physical loss of the pass book and just have the money transferred from one account to the other. And that’s the way I left it. “Q. Now, did there come a time when they refused to give you the money? A. Yes—Well, I never—I never asked for the money, but I was told later on that the money did not belong to me; that she had made a mistake. “Q. How much money was in that account at the time of your aunt’s death? That would be $5592.02?

A. Yes. That sounds — “Q. And you never did receive any money from the First National Bank under this account? A. No. “Q. Or any other account? A. No. “Q. Is that social security number on the signature card your social security number?

A. Yes. “Q. And that has your name and address and your age, et cetera? A. Yes.” Only two witnesses testified, Mrs. Lusby and the branch manager of the Bank. Mrs. Lusby said that around the summer of 1963 her aunt, Mrs. Mack, asked her to sign a signature card at the First National Bank. She pinpointed the date by saying that it was after the death of her mother in December, 1962, and that her aunt spoke to her at that time about putting her name on the joint account.

She identified the signature card ⁴⁹⁸ as the one that she thought she signed in 1963. She stated unequivocally that the only time Mrs. Mack ever discussed the account with her was when the signature cards were signed, that the money that went into the account was not Mrs. Lusby’s, that all of the money was Mrs. Mack’s, that Mrs. Lusby made no contribution to the funds in the account, that she did not report as income the interest recorded on the information tax returns she had received, that she never had the passbook for the account, and that she never made any withdrawals from the account. Mrs. Lusby said that she lives at 402 Ringneck Court in Reisterstown, the address on the signature card. Copy of a settlement sheet was presented indicating that she and her husband settled for this home on August 1, 1962.

Prior to that she lived at 4139 Mount-wood Road, the address on the signature card which had a line through it. Mrs. Sharp testified from an examination of the signature card that the account in the name of Mrs. Mack and Mrs. Lusby was opened November 2, 1961, being account No. 1225609 and that that account was closed on August 10, 1962, when Mrs. Mack withdrew the sum of $5,164.62 and opened a new account in that amount in her own individual name, account No. 1226150. She said the records of the Bank showed no account subsequent to August 10, 1962, in the joint names of Mrs. Lusby and Mrs. Mack, and the Bank never received a signature card containing the signature of Mrs. Lusby subsequent to November 2, 1961. She further testified that the name of Mrs. Lusby on the signature card was crossed out when account No. 1225609 was closed and the new account opened on August 10, 1962, although she conceded that she had seen the signature card for the first time the week immediately prior to her testimony.

She further testified upon examination by the court that the usual procedure in closing one account and opening a new one would be to have a new signature card prepared. She said the yellow card (the one on which the signature of Mrs. Lusby was crossed out, with “25609” ⁴⁹⁹ eliminated and “12026150” placed thereon) is the account card and the white card (the one with “25609” on it and no elimination of signatures) is a cross-file. In considering the motion for judgment n.o.v., the evidence and the reasonable inferences to be drawn from it must be considered in the manner most favorable to the party opposing the motion. P. Flanigan & Sons v. Childs, 251 Md. 646, 653 , 248 A. 2d 473 (1968).

In Jones, Adm. v. Hamilton, Adm., 211 Md. 371 , 127 A. 2d 519 (1956), Judge (now Chief Judge) Hammond said for the Court: “The distillation of the Maryland cases is that in a contest between those claiming as co-owners or as surviving owner of a bank or building association account, the Court has sought to find who was the original owner of the money on deposit, the intention of the owner as to the fund, the mechanics employed to effectuate that intent, and their effectiveness. If the mechanics are adequate to effectuate the intent, the Court will gratify the intent, whether or not the trust form has been used.” Id. at 380 . Mrs. Lusby sees Sturgis v. Citizens Nat. Bank, 152 Md. 654 , 137 A. 378 (1927), and Wetzel v. Collin, 170 Md. 383 , 185 A. 117 (1936), as supporting her position.

Sturgis involved a situation where a man desired to set up a bank account for a niece. The original deposit was made in the names of Sturgis and his niece “in trust for both, joint owners”, subject to his order with “the balance at the death of either to go to the survivor”. When the officers of the bank became doubtful of the effectiveness of this form which had been suggested by them, they called depositors who had made use of it to come in to make a change. Sturgis consented that another form recommended by the bank officers should be adopted for his deposit.

No check was drawn on the account in the one form to redeposit it with the other wording. The change was made by an entry in the bank ledger only. ⁵⁰⁰ The form there entered was in the name of him and his niece “in trust for both, joint owners, subject to the check of either, balance at the death of either to go to the survivor.” A passbook was made out in the first form and placed among the donor’s papers regularly kept at the bank. It was not changed and was not taken out until his death. He never drew any money from the deposits.

The Court said: “It is quite clear that the legal effect of the form of deposit adopted was fully explained to the donor, and especially that he was told that Mrs. Foulke could draw the money at any time; and quite clear that he deliberately adopted the legal consequences of the form of gift he was attempting to make. No signature card was ever procured from Mrs. Foulke. The fund merely lay untouched, accumulating interest, until the death of Mr. Sturgis. * * * * * * “The objection to the gift for informality in its