Whalen v. Milholland

McSherry, C. J., delivered the opinion of the Court. The controversy in this case grows out of a Savings Bank deposit. There are two claimants of the fund. The Savings Bank filed a bill of interpleader making them parties.

The contest is, consequently, confined to them. ²⁰⁰ It is undisputed that on and prior to May the sixth, eighteen hundred and ninety-one, Elizabeth O’Neill had on deposit to her own credit in the Savings Bank of Baltimore, the sum of two thousand one hundred dollars and forty-two cents. And it is equally beyond contention that this money belonged to her and to no one else. On that day she closed the account, and the same money was, at once, entered to the credit of Elizabeth O’Neill and her sister, Mary Whalen. Whether the money was really drawn and re-deposited does not appear; but as such a course was wholly unnecessary to effect the change actually made, it is highly probable that it was not resorted to.

The entry, as it now stands in the deposit or pass-book, is in these words : “ Elizabeth O’Neill and Mary Whalen. Joint owners. Payable to the order of either or the survivor.” When this account was opened on May the sixth, it read : “ Elizabeth O’Neill and Mary Whalen. Payable to the order of either or the survivor,” but later on the words “joint owners” were added, when that form was adopted by the bank.

Both of these entries were placed on the deposit or pass-book by a stamp. There is nothing whatever in the record to show when the words “joint owners” were stamped upon the pass-book, and not the slightest suggestion that they were placed there with Miss O’Neill’s knowledge or consent. She could not read and there is no evidence tending to show that she knew the words “joint owners” were there. After the account was opened she added by deposits and accrued interest the sum of one thousand and three dollars and thirty-six cents, and she drew out amounts aggregating six hundred and thirty-six dollars and five cents.

She retained possession of the pass-book from the opening of the account up to the time of her decease, unless the contention of Mrs. Whalen that it was delivered to her a few hours before her sister’s death, is well founded. Miss O’Neill died in September, eighteen hundred and ninety-seven, leaving a last will and testament. Mr. A. V. Milholland is named as the executor therein. Mary Whalen claims the funds in ²⁰¹ dispute ; and she claims them under the terms of the deposit and by virtue of an alleged delivery of the pass-book ; whilst on the other hand the executor of Miss O’Neill insists that they are payable to him as assets of her estate.

Starting with the concession, or if not with the concession, with the indisputable fact, that prior to the deposit of May the sixth, the money in controversy was the property of Miss O’Neill, there is no escape from the conclusion that it continued to be hers and now forms part of her estate, if she did no act by which she parted with that ownership. There is no pretence that anything evidences a surrender by Miss O’Neill of her interest and estate in this money, other than the entry in the pass-book and the alleged delivery of that book, or both combined. 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 the legal principles which should control the decision of such a controversy.

The money being the property of the depositor, the fundamental question always is : Has a valid and effective gift been made of it to another ? To make a gift perfect and complete, there must be an actual transfer by the donor of all right and dominion over the thing given; and there must be an acceptance by the donee or by some competent person for him. In addition to this it is essential to the validity of such gift, that it should go into effect, or in other words, transfer the property, at once and completely; for if it has reference to a future time when it is to operate as a transfer, it is nothing more than a promise without consideration, and cannot be enforced either at law or in equity. Until the gift is legally perfect and complete, a locus penitentia remains, and the owner may make any other disposition of the property that he or she may think proper.

Taylor v. Henry & Bruscup, Admr., 48 Md. 557 ; Gorman v. Gorman, 87 Md. 338 ; Pennington v. Gittings, 2 G. & J. 208 ; Murray v. Cannon, 41 Md. 476; Dougherty v. Moore, 71 Md. 249 . “ There is no case,” said Gibbs, C. J., “which ²⁰² decides that the donor may resume the possession and the donation continue.” Bunn v. Markham, 7 Taunt. 214. It needs no discussion, especially since the decision of the cases of Taylor v. Henry & Bruscup, supra, and Dougherty v. Moore, supra, to show that the entry as originally made, viz.: “ Elizabeth O’Neill and Mary Whalen, payable to the order of either or the survivor,” is wholly insufficient to effect a transfer and delivery of the funds to Mrs. Whalen, or to place them beyond the power of Miss O’Neill to reclaim. The deposit in the names of Miss O’Neill and Mrs. Whalen was payable to the order of either or the survivor. Miss O’Neill having by this form of entry retained undoubted power to draw the money out of bank whenever she pleased, obviously did not divest herself of dominion over it.

There was nothing to prevent her from checking out every cent of the fund immediately, or at any time, after the deposit in the two names had been made. If this be true — and it cannot be questioned — there was no perfected gift to Mrs. Whalen, and she, consequently, acquired no interest in the fund by the form of the entry as it then stood. The form of the entry in the Taylor case was : “Joseph Henry, Margaret Taylor, and the survivor of them, subject to the order of either;” and in the Moore case, it was : “ Lawrence McDonald, Sarah McDonald and the survivor, subject to the order of either.” These are identical in legal effect with the entry we are now dealing with (for- we are excluding, for the present, the words “joint owners”) and both were held to be insufficient to transfer the funds to the survivor. But much stress was laid on the words “joint owners,” which were subsequently stamped on the pass-book.

Of themselves these two words, as we said in Gorman v. Gorman, supra, are not sufficient in a deposit made in a Savings Bank, to transfer title to the fund — that is, they are not sufficient to convert the fund from being the property of the person to whom it belongs into the property of the original owner and another'individual. Whatever their technical import may be when employed in other instru ²⁰³ ments, they cannot operate to vest an ownership to the extent of one-half of the fund in some one else, when, under the terms and according to the legal effect of the very paper in which they are used, the depositor retains such a dominion over the fund deposited that he may at any moment withdraw the whole of it. If these two words do not restrict the authority of the depositor to draw the money, they do not limit or curtail his control over it; and if his control over it is not limited or curtailed, there is obviously left to him a locus penitentiae, and there is, consequently, no perfected donation. That the words “joint owners” do not, and were not intended to, restrain the depositor from forthwith drawing out of bank the whole fund deposited, is apparent; because, in spite of their use, the other words of the entry expressly declare that the fund shall be payable to either of the parties named, and therefore, to the one to whom it originally belonged and who caused the entry to be made in that particular form.

Always bearing in mind that the fund belonged to only one of the parties named as joint owners, and that you are searching for evidence tending to show a gift of that fund, or of a part of it, to a person who confessedly in the first instance owned none of it, the control retained over the whole of it by the original owner under the very terms of the deposit which he makes, is of great significance in repelling any inference that he intended to part with his owmership in any way whatever. Particularly is this so wheri- the original owner retains possession of the pass-book and when the deposit is made in a Savings Bank, by the rules of which the book must be produced before the deposit can be withdrawn. There is, however, another reason why the addition of the words “joint owners” cannot, in this case, enlarge or change in any way the original entry to the credit of Miss O’Neill and her sister. Those words were placed on the book, not because Miss O’Neill requested the bank officers to do so, and not because she thought they would, or designed they should vest an indefeasible interest in her sister, ²⁰⁴ but merely because the bank had adopted that form, as testified by the assistant treasurer, “ to make it uniform ”— though uniform with what he did not say.

The words were put there not as expressing Miss O’Neill’s intentions or as limiting her control over the funds, but manifestly to carry out some policy or theory of the Savings Bank. They represent and stand for no voluntary, deliberate act of hers at all. In the face of these facts, whatever the import of the words might be, had they been consciously and purposely used by Miss O’Neill, they certainly can be given no weight or potency. Whilst it may be conceded that Miss O’Neill intended this fund to belong to her sister should the latter survive her — and there are quite a number of her declarations in the record indicating that she did — still, the method resorted to by her for the accomplishment of that end, cannot, so far as the entry in the book is concerned, be treated as efficacious.

The entry did not constitute a valid gift inter vivos, as we have already pointed out; and it cannot, for obvious reasons which need not even be suggested, operate as a testamentary disposition of the fund. The money, therefore, belonged to the original owner at the time of her death, unless the delivery of the book to Mrs. Whalen, or the entry and the delivery together, constituted a valid donation. If we assume for the moment that the evidence satisfactorily establishes a delivery of the bank-book to Mrs. Whalen by Miss O’Neill, the question is then presented as to whether the gift and delivery of a bank-book containing the entry that this one embodies, including the words “ joint owners,” amounts to, and is, in law, a delivery of the money credited in the book. In Murray v. Cannon, supra, where the entry was “ James Cannon, subject to his order, or to the order of Mary E. Cannon,” the possession of the book by the claimant, the alleged donee, Mary E. Cannon, did not effect a transfer of the fund to her. “ Its delivery to her,” said this Court, “ cannot be said to operate as a delivery to her of the money in question, or to deprive James ²⁰⁵ Cannon of dominion and control over it.

This branch of the case,” the opinion goes on to declare, “ is within the principle decided in Ward v. Turner, 2 Ves. Sr. 431. There the bill was to obtain a transfer of South Sea Annuities, upon the ground that the receipts for them had been delivered to the complainant’s testator, the donor saying, ‘ I give you these papers, which are receipts for South Sea Annuities and will serve you after I am dead. ’ This was held not to be a perfected gift, because the delivery of the receipts was not a delivery of the annuities, as they could only be delivered by a transfer or something equivalent. So in this case the delivery of the book of deposit did not constitute a delivery of the money, which it is claimed was the thing intended to be givenj because its delivery could not be effected in that way.” To change the fund from the name of James Cannon to that of the alleged donee required a check drawn by the depositor or by his agent, Mary Cannon, during his life; because upon his death her agency terminated.

She was not named in the deposit-book as a joint owner of the fund. The possession of the book may be a circumstance to be considered in determining the ownership of the fund, “ but when the ownership is fixed beyond dispute by the entry or in some other way, then the mere possession of the bank-book is not to be taken as conclusive of the ownership of the person in whose possession it is found.” Gorman v. Gorman, supra. In Dougherty v. Moore, supra, we said : “We shall not stop to consider whether an assignment in writing and delivery to a donee of a pass-book of a Savings Bank by