Murray v. Cannon

Brent, J., delivered the opinion of the Court, There are two questions presented upon this appeal. The first is the admissibility of the testimony of Kone and wife, who are made defendants by the complainant’s hill; and the second is the gift of certain sums of money, in the Savings’ Bank of Baltimore, by James Cannon in his lifetime, to the appellant, Mary E. Murray. The bill is filed by the administratrix of James Cannon, and unless Kone and wife are “ nominal parties merely,” they are not competent witnesses under the Act of 1868, ch. 116. They are not excluded upon the ground of interest, and their release dated the 15th of April, 1813, can have no effect in making them competent.

The object of the bill is to obtain possession of the book of deposit of certain sums of money alleged to have been deposited in the Savings’ Bank of Baltimore, by James Cannon, in his life-time, to which the complainant, as his administratrix, claims she is entitled. It is substantially charged in the bill, that Kone and wife, as well as the appellant, have been active parties in withholding this book, and resisting the payment over of the money to the estate. That they have been, the answers and proof in the case abundantly ⁴⁷⁶ establish. If wrong it is as alleged in the bill, they are partiesto.it, and the complainant has sufficient reason to insist that they should be held as parties defendant.

It cannot therefore be claimed that they are nominal parties merely, and as such, competent to testify under the Act of 1868. As this is the only ground upon which they could be admitted as witnesses, their testimony must be excluded. The grounds, as presented by this record, upon which the appellant claims the money in the Savings’ Bank, are the entry in the book of deposit, and the possession of the book during the life-time of the intestate, James Cannon. The entry in the book of deposit, which corresponds with the account upon the books of the Savings’ Bank, is as follows: “James Cannon, subject to his order, or to the order of Mary E. Cannon.” Mary E. Cannon afterwards became the wife of a Mr. Murray, and is the same person who is appellant in this case under the name of Mary E. Murray.

To perfect a gift, the delivery of a thing intended to be given is indispensable. ■ “ There must be a parting by the donor with the legal poioer and dominion over it. If he retains the dominion, if there remains to him a locus penitentice, * * there cannot be a perfect and .legal donation, and that which is not a good and valid gift in law cannot be made good in equity.” Patterson’s Admr. vs. Gittings’ Exr., 2 G. & J., 217 ; Nickerson vs. Nickerson, 28 Md., 327 . The money in question was deposited in the Savings’ Bank to the credit of James Cannon, and so continued up to the time of his death. He retained dominion and control over it by the very terms of the account with the Bank, and could at any time have drawn it out, or revoked the power given to Mary