Mathias v. Fowler

Stockbridge, J., delivered tie opinion of tie Court. After tie learing of tlis case in tie Circuit Court for Carroll County, sitting in equity, an opinion was filed and decree entered directing tie payment over of tie fund, wlicl lad been deposited in Court under a bill of interpleader, to Claries T. Fowler, administrator of William R. Fowler. Tie opinion of Judgkei Thomas covered tie facts and law applicable to tie casé witl sucl tlorouglness tlat, unless tlat learned judge fell into- some error, in tie judgment of tlis Court, it would be superfluous to say over again wlat le las so well said. ■ A careful examination of botl tie facts and tie law disclose no sucl error, and tlis Court is clearly of opinion tlat Ms conclusions were correct, and tie decree appealed from will be affirmed. Tlis Court also adopts lis opinion as its opinion in tlis case, and accordingly appends tlat opinion hereto.

Decree affirmed, with costs. Tie following is tie opinion delivered by Thomas, C. J., in tie Court below, wlicl was adopted by tie Court of Appeals : On tie 22nd of January, 1906, William R. Fowler deposited in tie Union Rational Bank of Westminister tie sum of $2,000.00 in wlat was called an “interest account,” at tlree per cent interest, and tie bank delivered to lim a book in wlicl said deposit was entered, and wlicl contained a ⁶⁵⁷ contract signed by the said Fowler and one of the clerks of the bank for the cashier. Among the provisions of the contract is the following: “'That no deposit for entry in this book or upon the terms herein set forth, will be received, and no money deposited in said bank and entered in this book shall be withdrawn unless the book is produced at the bank at the same time and the proper entry is made therein by some officer of the said bank,” and the contract further provided, “That the following provisions, conditions and agreements are to be binding upon all persons claiming said funds through, from or under me,” and “That the privilege is expressly reserved to and retained by the bank to return to the depositor the sums deposited under the above conditions, or to discontinue the payment of said interest thereon at any time after the expiration of four months’ notice in writing given by the bank to the depositor.” The bank book was numbered 119, and some time after the account was opened it was changed in the bank book so as to make it read: “The Union Rational Bank of Westminster in account with W. R. Fowler or Charles E. Fowler or the survivor of them.” A number of other deposits were made in this account, the last credit being, “1912, June 1st Int. to June 1st, 1912, $28.50,” the account also shows the amounts withdrawn, the last being, “June 1st, 1912, Self, $28.50. The account referred to was closed June 1st, 1912, and a new account was on that day opened for the balance therein, amounting to $1,900.00.

The new book was numbered 119, and the entry in the book is: “The Union Rational Bank of Westminster in account with W. R. Fowler or Wm. A. Mathias or either of them.” The book also contained an agreement like the one we have already referred to, signed by W. R. Fowler and James Pearre Wantz, assistant cashier. Mr. Wantz, who is now the cashier of the Union Rational Bank, states the circumstances under which the last mentioned account was opened as follows: “Mr. Fowler came in with the book marked Exhibit Ro. IF (the book referred to ⁶⁵⁸ above as containing the account opened in 1906), and said he wanted to draw the interest on that book and wanted to know if he couldn’t change the account so that William A. Mathias could get the money in case anything happened to him, Billy Fowler.

He said his brother, Charles E. Fowler, was drinking and onery and he wasn’t entitled to the money and he didn’t want him to have it, and that Will Mathias had helped him to make part of it, that he was entitled to it, and that he wanted him to have it, and asked if I could fix it that way. At the same time he said he wanted the same number of books and the account to1 run as it had before, with the exception of the names changed.” Mr. Wantz also says that Mr. Fowler did not at the time say anything about the interest, and that he, the witness, opened the new book “with the balance of $1,900.00 in the name of William R. Fowler or William A. Mathias or either of them”; and further testified: “Mr. Fowler wanted the same book and the same number, but wanted the names changed. We don’t scratch any names on books ,in the bank, and the only way to open the account was to give him a new book with the same number and start the new book with the same balance in the old book.” Clinton B. A. Fogle, who in 1912 was teller of the Union Rational' Bank and who was in the bank at the time Mr. Fowler came there, testified: “He (Mr. Fowler) came, in and said to Pearre Wantz • Mr. William E. Fowler came into the Union Rational Bank and said to Pearre Wantz that he wanted to draw the interest due on his deposit in the savings account and that he wanted to change it to- the name of Km self and Wm. A. Mathias instead- of his brother.

I don’t know whether he said his brother, but he said instead of Chas. E. Fowler. He said the reason he wanted to change it, he said his brother was onery and didn’t deserve anything, ánd that he thought a good bit of this boy and he wanted him to have that money in case he died.” Mr. Fogle was asked if anything was said by Mr. Fowler about the interest on the ⁶⁵⁹ $1,900.00 deposit of June 1, 1912, and replied : “He said— I don’t know if I recall what he said about the interest or not—he said he would draw the interest.” On cross-examination, when asked to state in his own way without interruption the conversation between Mr. Fowler and Mr. Wantz, the witness said: “Mr. Fowler came in the Union National .Bank and said he wanted to draw the interest duo on his deposit and he wanted to change it, and asked Mr. James Pearre Wantz if he could fix it so that the money standing in his name on that book could be changed to read, himself and William A. Mathias or the survivor of them; that Charles C. Fowler was getting onery and didn’t deserve anything. He also said that he liked this hoy and he wanted him to get that money in case anything happened to him.” It appears from the further evidence in the case that after the second account was opened both hooks were delivered by the bank to Mr. Fowler and remained in Ms possession to the time of his death, in November, 1913, and that he collected the interest on the $1,900.00 during his life.

After his death the Union National Bank filed a bill of inter-pleader against William A. Mathias and Charles E. Fowler, administrator of William B. Fowler, both of whom claim the fund deposited in the second account, and said deposit and accrued interest thereon, less the costs, was, under the order of this Court, paid into Court. In the case of Taylor vs. Henry, 48 Md. 550 , the deposit in the Futaw Savings Bank of Baltimore of $1,850.00 was to the credit of “Joseph Henry, Margaret Taylor, and the survivor of them, subject to the order of either.” After the death of Joseph Henry a bill was filed by his administrator against Margaret Taylor praying for an account of the money drawn by her from the bank after the death of Joseph Henry. The Court held that the terms of the deposit did not import a gift inter vivos, and that Margaret Taylor was not entitled to the balance of said deposit remaining in the bank at the death of Joseph Henry. In disposing of the case ⁶⁶⁰ Judge Alvey said: “Here the deposit was in the joint names of the deceased and his sister, and the survivor of them, but subject to the order of either.

Having thus retained the power to draw out the money, the deceased did not divest himself of dominion and control over the fund. He could have drawn out every dollar the day after the deposit, or at any time up to the moment of his death, and applied it in any manner he might have thought proper. It is not contended that the sister had the least right or interest in the money before the deposit; nor is it contended that she acquired any interest therein otherwise than by the supposed gift of the brother; and the only evidence relied on to support the factum of the supposed gift, is the form of the entry in the' bank-book. But, as will be observed, there are no terms in the entry that import of themselves an actual present donation by the brother to the sister; and the dominion retained by the brother over the fund enabled him to displace and utterly destroy all power conferred upon the sister in respect to the fund.

As the mother’s name had been erased and that of the sister inserted, so the name of the sister could have been erased, without the slightest doubt of the brother’s right to do so. The sister never exercised any power or control over the fund during the life of the brother. It was only after his death that she attempted to assert right and dominion over it; and then by the supposed right of survivorship. But, if the supposed gift was not perfect and irrevocable during the life of the donor, it ¿ould become so after his' death only as a donatio mortis causa; and from the form of entry, and the facts of the case, it is impossible that the transaction can be allowed to prevail as a donatio mortis causa.” In Dougherty v. Moore, 71 Md. 248 , Lawrence McDonald opened an account in the Eutaw Savings Bank, and thereafter the name of his wife was added so as to make the entry in the pass-book and in the ledger of the bank read as follows: “Lawrence McDonald, Sarah McDonald and the survivor, subject to the order of either.” ⁶⁶¹ Thereafter, on the 4th of January, 1876, the following entry was also made: “In consideration of my natural love and affection for my wife, Sarah McDonald, I give to her all the money belonging to me credited or to be credited in this book, and I direct the same to be paid to her, and her receipt shall be good for the same.

Lawrence (his X mark) McDonald.” The only question in that case was whether there was a valid gift by the husband to his wife of the money held on deposit by the bank, and in disposing of that question the Court said: “All agree that to constitute a valid gift between living' parties, or gifts inter vivos, as they were distinguished by the civil law, there must be a delivery of the subject-matter of the gift, with the intent on the part of the donor to transfer the right of property to the donee, or to someone for his use. The donor must renounce, and the donee must acquire, the title and interest in the property given. So long as there is a locus penitentice in the donor, a right to change Ms mind, to modify, or revoke it, the gift is incomplete. * * * Although the husband in this case did not mean to relinquish his right to use the money on deposit during his life, he did mean that whatever remained in the bank, at the time of his death, should go to his wife if she survived him. But these entries can not operate as a testamentary disposition of property, because they are not executed as the law requires.

We are of opinion, therefore, that the money held on deposit by the Eutaw Savings Bank belongs to the administrator of the husband, and not to the administrator of the wife.” In the case of Whalen v. Milholland, 89 Md. 199 , the deposit in the Savings Bank of Baltimore was entered in the pass-book as follows: “Elizabeth O’Heill and Mary Whalen. Joint owners. Payable to the order of either or1 the survivor.” The money was deposited by Elizabeth O’Xeill, and after her death was claimed by Mrs. Whalen. There was evidence other than the entry in the pass-book to show ⁶⁶² that Elizabeth O’Heill intended that Mary Whalen should have whatever remained in said account at her death, but the Court held that she was not entitled h> it, and in disposing of the case said: “This Court has frequently had occasion to consider cases growing out of similar deposits.

There ought not now to be, even if there ever was, any uncertainty about