Scott, Adm'x v. Bowman

Marbury, J., delivered the opinion of the Court. This is an appeal by the substituted complainant Dorothy B. Scott, Administratrix of the Estate of Lillian Irene Smith, also known as Lillian Bowman, from an order of the Circuit Court of Baltimore City which determined that certain funds on deposit with the Riverside Federal Savings and Loan Association (Riverside) in a savings account were the sole property of the appellee, Paul E. Bowman. Riverside was joined as a nominal party only, and claimed no interest in the funds other than as a stakeholder. The appellant’s decedent, Lillian Irene Smith, widow, and the appellee Bowman resided together without benefit of a marriage ceremony but held themselves out to the public as man and wife from November 1955 until December 1967.

On November 14, 1955, the appellee and Mrs. Smith opened a savings account with Riverside in the form: Paul E. Bowman, in trust for himself and Lillian Bowman (wife) as joint owners, subject to the order of either, the balance at death of either to belong to the survivor. The account was an active one with both parties making deposits and withdrawals of substantial amounts. In December 1967, Mrs. Smith became seriously ill, and she entered Maryland General Hospital under the name of Lillian Bowman. While in the hospital Mrs. Smith grew apprehensive concerning the payment of her bills and shortly after the first of January, 1968, she sent her daughter, Dorothy B. Scott, to her house to get the passbook for the account which was kept ⁵⁷ in the kitchen in a metal can.

The daughter was unable to obtain the passbook since the appellee had removed it. Thereafter, on January 24, 1968, Bowman withdrew $1,000.00 from the account. Some of this money was used to pay a portion of Mrs. Smith’s hospital bills. Subsequently, when Bowman visited Mrs. Smith at the hospital she asked him for the passbook but he refused to give it to her.

Mrs. Smith then instructed her daughter to arrange with Riverside for the freezing of the funds and also to withdraw them. Riverside suggested that a withdrawal slip be filled out. On January 30, 1968, such a slip was filled out by Mrs. Smith in the amount of $7,219.65. The record is devoid of any evidence that this withdrawal slip was ever presented to Riverside.

On February 3, 1968, Mrs. Smith filed suit in the Circuit Court of Baltimore City seeking an injunction against any further withdrawals by Bowman and a determination of the rights of the parties to the funds in the account. Before the case could be heard she died and her daughter, who had been appointed administratrix of her estate, was substituted for her as a party to the suit. After hearing testimony as to the sources of the money deposited in the account and the intention of the parties at the time said money was deposited, the chancellor found that the parties had created a valid trust and that the funds in the savings account were the sole and exclusive property of Paul E. Bowman. From an order embodying this adverse finding the administratrix has appealed.

As a preliminary matter the appellee invoked the “Dead Man’s Statute,” Code (1965 Repl. Vol.) Article 35, Section 3, as to much of the testimony of Dorothy B. Scott. The trial court admitted her testimony subject to exception but since no further effort was made by the appellee to exclude it and all of the testimony of the appellant was considered by the court, no prejudice resulted to her. We need not consider this point.

Since Milholland v. Whalen, 89 Md. 212 , 43 A. 43 (1899), this Court has held that an account created by the words “A in trust for himself and B as joint owners,