Ragan v. Kelly

Forsythe, J., delivered the opinion of the Court. On September 14, 1937, Edward F. Kelly, late of Baltimore City, died at Bon Secours Hospital in Baltimore City. His only heirs and next of kin were a sister, Mary Ragan, her daughter, Agnes C. Ragan, and John C. Kelly, Edward F. Kelly, Ida Sjolander and Viola Smith, children of a deceased brother. At the time of his death, Mr. Kelly was seventy-nine years old.

Prior to his death he had on deposit at the Carrollton Bank of Baltimore, in his individual name, and subject to his individual order, the sum of $2,035.63. On August 9, 1937, Mr. Kelly signed an order authorizing the said bank to enter on his account the name of his niece, Agnes C. Ragan, so that the account then would stand as “Edward F. Kelly in trust, until withdrawal thereof,, for self and Agnes C. Ragan, joint owners, subject to order of either, the balance at death of either to belong to survivor.” On the same day the bank made the entry in accordance with the order. Immediately, Agnes C. Ragan made a withdrawal of $500, and later $1,000, from the account, a part of which was expended by her while Mr. Kelly was in the hospital, for hospital bills and nursing, and a part was expended after his death for clothing, burial expenses and the doctor’s bill. On March 11, 1938, a bill of complaint was filed in Circuit Court No. 2 of Baltimore City by John C. Kelly, Edward F. Kelly, Ida Sjolander and Viola Smith against Agnes C. Ragan, Mary Ragan, John A. Brady, administrator of the estate of Edward F. Kelly, deceased, and the Carrollton Bank of Baltimore City.

The bill sought a decree, (1) that the paper-writing bearing the signature of Edward F. Kelly delivered to the Carrollton Bank on August 9, 1937, directing that his account be changed to read “Edward F. Kelly, in trust un ³²⁷ til withdrawal thereof, for self and Agnes C. Ragan, joint owners, subject to withdrawal by either, the balance at death of either to belong to the survivor” be declared invalid, void and of no effect; (2) that the balance of $543.31 remaining on deposit in the Carrollton Bank be declared to belong to the estate of Edward F. Kelly, deceased; (3) that Agnes C. Ragan be required to account to the estate of Edward F. Kelly for all sums withdrawn from the aforesaid bank, except such sums as were used by her for the payment of the reasonable hospital and medical expenses of the said Edward F. Kelly during his lifetime; and (4) that the said admininstrator be required to administer the estate of Edward F. Kelly under the jurisdiction of Circuit Court No. 2 of Baltimore City. After answers, testimony was heard and the court, on June 25, 1941, passed a decree directing Agnes C. Ragan “to account to John A. Brady, administrator of the estate of Edward F. Kelly, deceased, for the sum of 81,211.65 as representing the difference between the sum of $1,500 which she withdrew from a deposit in the Carrollton Bank of Baltimore, belonging to the said Edward K. Kelly and the sum of $288.35 which the said Agnes Ragan disbursed on the account of the said Edward F. Kelly prior to his death on September 14, 1937, to the end that the said sum of $1,211.65 may be administered in the Orphans’ Court of Baltimore City in accordance with law.” The decree also directed the Carrollton Bank to pay to the said administrator the sum of $576.56, representing the present balance on deposit in said bank, belonging to the estate of the said Edward F. Kelly, deceased. From that decree this appeal was entered. The testimony contained in the record discloses that on August 1, 1937, Mr. Kelly became seriously ill and entered Bon Secours Hospital in Baltimore City.

His condition necessitated a serious major operation, which was performed on August 7, 1937. Mr. Kelly died on September 14, 1937. On August 9, 1937, two days after the operation, and while Mr. Kelly was “a very sick man,” his niece, Agnes C. Ragan, had him sign an order on ³²⁸ the Carrollton Bank, in which he had on deposit at that time §2,035.63, to change the entry on his account. On the same day, August 9, 1937, Agnes Ragan took the order to the bank, and the entry changed to its present form, as follows: “Edward F. Kelly in trust, until withdrawal thereof, for self and Agnes C. Ragan, joint owners, subject to order of either, the balance at death of either to belong to survivor.” The circumstances surrounding the actual signing of the order by Mr. Kelly were told by the witness Danko, who occupied the room with Mr. Kelly on the day the order was signed.

Danko testified Agnes Ragan came into the room about 10 o’clock in the morning, and Mr. Kelly “asked her if she had brought the papers”; she produced the papers and Mr. Kelly “asked for his glasses and took the paper and read it over and asked where he should sign.” The witness described the paper as being of “legal size” and was emphatic in stating that it was not the cards shown him at the trial. Also, he said he saw no other papers signed. This witness heard no discussion about the papers, either before or at the time they were signed, and did not know the nature of the transaction. On that day, Danko said Mr. Kelly told him he was “in great pain,” but it was the witness’ opinion that Mr. Kelly knew what he was doing.

A nurse, Miss Gonley, was called in to witness Mr. Kelly’s signature. The card was signed in her presence. She said, “when he signed the card he seemed to know what he was doing.” The witness heard no discussion about the card, but knew that Mr. Kelly “suffered a good deal.” Like Danko, Miss Gonley did not know the nature of the transaction. There was no other testimony concerning the actual signing of the card, or that would throw any light on anything that had transpired between Mr. Kelly and Agnes Ragan prior to the signing of the card.

The bank teller, Stiemly, testified Agnes Ragan came to the bank on the morning of August 9, and presented Mr. Kelly’s bank book and told him her uncle “was quite ³²⁹ seriously ill in the hospital and she needed money to pay his hospital bills and doctor bills and wanted to know just how it could be arranged that she could make the withdrawals.” He explained to Miss Ragan the procedure required by the bank, and gave her the card to be signed by Mr. Kelly. Miss Ragan took the card and later returned with Mr. Kelly’s signature on it. The account was then entered in accordance with the card. Mrs. Ida M. Sjolander, a niece of Mr. Kelly, and one of the plaintiffs in the bill, testified she had a conversation with Agnes Ragan on the night of August 8 (the night before the card was signed), as follows: “I asked Agnes if she had taken care of Uncle Eddie’s affairs and she said, ‘Why?’ I said, ‘Have you his bank book?’ and she said, ‘Yes.’ and she said, ‘How did you know he had any money?’ And I said, ‘Well, I have known it for some time.’ And I said, ‘Whose name is the bank book in?’ And she said, ‘It is in Uncle Eddie’s name.’ She said, ‘How could I get my name on it?’ And I said, ‘Owing to his condition tonight, it is impossible for you to do that,’ and the matter was dropped and that was all that was said.” The witness also said later: “I asked what bank it was on and she refused to tell me and I asked how much was on deposit and she refused to tell me.” In reference to the transaction with the bank, Agnes C. Ragan testified: “I went to the bank and told them this was my Uncle’s book and he wanted my name put on the book just the same as the book I carried, which was from the Metropolitan Bank.” It was stipulated that the book she carried was in the name of the witness and her mother, with the same provision for survivorship as now appears on Mr. Kelly’s book.

Agnes Ragan further testified Mr. Kelly’s bank book was given to her by one of the sisters of the hospital, together with keys and cash money. On cross-examination, Miss Ragan was asked: “You didn’t question that it was Mr. Kelly’s money and you intended to spend it for him to the extent necessary, is that right?” A. “Yes.” ³³⁰ On the 9th of August, after the transaction of changing the entry on the bank book was completed, Miss Ragan drew out $500, and on August 24, $1,000. Both amounts were deposited in her account in the Metropolitan Bank. She explained that was done for her convenience, as the Carrollton Bank was a greater distance from her place of employment.

From the time Miss Ragan drew the money until after Mr. Kelly’s death, she paid all hospital bills, including nurses. Also, she paid the burial expenses and the doctor’s bill — in all, something over $1,200. The appellees contend that the placing of the name of Agnes C. Ragan on Mr. Kelly’s bank book was for the specific purpose of enabling her to draw from the account money to pay the hospital and nurses and any other bills that might be necessary during Mr. Kelly’s illness, and that the balance of what was left after paying all bills incurred before Mr. Kelly’s death now belongs to the estate of Mr. Kelly and must be paid to the administrator. The appellant, Agnes C. Ragan, insists that, under the terms of the entry in the bank book, all of the balance now remaining in the bank, and all of the balance of the $1,500 she withdrew, now belongs to her.

Numerous cases have been before this court involving bank deposits, some of them somewhat similar to this case. The circumstances under which deposits were made vary in many instances, but certainly since the decisions of this court in the Millholland-Whalen Cases, reported in 89 Md. 199 , 43 A. 45 , 44 L. R. A. 208, and 89 Md. 212 , 43 A. 43 , 44 L. R. A. 205, the legal effect of an entry in a bank book similar to the entry in this case has definitely been settled. The general rule there adopted, and since followed, is that the entry, as it stands, is a sufficient declaration of a trust as it, unexplained, indicates an intention to create a' trust. But the entry may be explained and the intention it indicates may be rebutted.

In any particular case, the question whether a trust in law has been created effectually to vest the fund in ³³¹ the survivor depends entirely upon the actual intention of the original owner of the fund at the time he had the entry in the bank book made. Millholland-Whalen, supra. In this case there now can be no question that the entry in Mr. Kelly’s bank book is sufficient, as it stands without explanation, to vest the entire ownership of the balance of the fund remaining after Mr. Kelly’s death in the appellant Agnes C. Ragan, provided it be found from all the facts and circumstances, under which the entry was made, that such was Mr. Kelly’s definite intention. The facts, as disclosed by the evidence in this case, from which an intention to establish a trust, vesting full ownership in the survivor, must be ascertained are few and simple, and the evidence comes, principally, from two witnesses, Miss Agnes