Whittington v. Whittington

Brune, C. J., delivered the opinion of the Court. Appellant filed a bill of complaint in the Circuit Court for Prince George’s County requesting the court to declare either that a constructive trust existed as to the balance in four joint savings bank accounts or that the balances, in the accounts were assets of the estate of appellant’s late husband. The theories relied upon by appellant were: (1) that her husband by transferring funds from his savings bank accounts to four ⁵ accounts jointly in his name and the name of one or the other of two sons by a previous marriage failed to create during his lifetime valid trusts; (2) that even if two of these accounts created valid trusts, the other two did not because the signature cards did not provide for trusts (though the passbooks did), and (3) that, even if valid trusts were created, their creation amounted to a fraud upon the marital rights of the appellant. From the Chancellor’s decree dismissing the bill of complaint, this appeal is taken.

The appellant and her late husband, Luther W. Whittington, Sr. were married on November 20, 1935. Both had been previously married, and at the time of their marriage, the children of their previous marriages were grown and living in separate homes. Mr. and Mrs. Whittington lived together happily on one of his farms at Dunkirk, Calvert County, until his death on July 16, 1951. In May, 1950, Mr. Whittington determined, because of his advanced age, to sell a farm located in the lower part of Anne Arundel County, but apparently had some difficulty convincing his wife that this was advisable.

Appellant refused to sign the deed to the property and thus release her dower interest. The reasons she gave were that they should keep something for their old age and in reserve, and the fact that her husband had given large sums of money at various times to his sons. After conferring with her son, however, she agreed to, and did, accept $2,000.00 out of the proceeds from the sale of the farm. She deposited the money in a bank in an account in the joint names of her husband and herself.

The Chancellor has summarized the events leading to the creation of the savings bank accounts here in dispute: "On June 13th, 1950, the balance in his savings account in the County Bank was $598.50. Mr. Whittington, Sr., on that date went to the County Bank with the balance of the proceeds obtained from the sale of his ⁶ farm. He informed the Bank that he desired, so that a record could be made of the transaction, to place this money in his savings account, and then withdraw the entire deposit and divide the amount equally between two accounts for the benefit of each of the two sons. His individual savings account was closed by transferring $3,443.57, to each of two accounts one of which read, ‘L. E. Whittington, Sr., in trust for himself, and L. E. Whittington, Jr., joint owners, subject to the order of either, and the balance at the death of either, to belong to the survivor.’ The second account at the County Bank was identical in the amount and wording, except the name of Ralph E. Whittington was substituted for L. E. Whittington, Jr. These accounts remained in the Bank without any withdrawals or additions, with the exception of interest being credited thereto, until they were withdrawn by L. E. Whittington, Jr. and Ralph Whittington, respectively, on July 25th, 1951, after the death of their father, L. E. Whittington, Sr. The Assistant Cashier of the Bank testified that Mr. Whittington explained that he had made provisions for his daughter and wife, and that he wanted his two sons, L. E. Whittington, Jr. and Ralph Whittington, to have the money on deposit by dividing it equally between them.

Mr. Hutchins, the Assistant Cashier, further states that he explained to. the decedent how this could be accomplished, read to him the words to be used on the account and explained the steps indicating the way the accounts were to be opened, and explained further the rights of the decedent as well as his sons in the accounts. After this was read to Mr. Whittington, the Assistant Cashier states that he was informed that was the way the decedent wanted the accounts opened. The decedent then received the two bank books, each of them in the form above quoted. “On September 8th, 1950, the decedent went to the National Bank, conferred with Mr. Mattingly, the Bank’s Cashier, and stated that he wished to withdraw $10,000.00 from his individual savings account, leaving ⁷ a balance therein of approximately $9,000.00, and informed the Cashier that he desired to create two new accounts, $5,000.00 each, so that he could give to each of his two sons that amount for their use after his death. The bank books given to Mr. Whittington are identical except for the use of his sons’ names and read, ‘In account with Luther E. Whittington, in trust until withdrawal hereof for self and Luther E. Whittington, Jr., joint owners, subject to withdrawal by either the balance at the death of either to belong to the survivor.’ Mr. Mattingly states that he explained to Mr. Whittington what the joint account was, and informed him it would be necessary that the Bank have the signature card identifying the signature of his two sons.

This was obtained by the decedent, and he informed Mr. Mattingly that he wanted his boys to each have $5,000.00, and was opening these two accounts for that purpose, but he didn’t want them to use the money until after his death. “The undisputed testimony in the case shows that Mr. Whittington, Sr., took the four pass books from the two banks and kept them in his personal possession during the remainder of his life. After his death they were found in his lock box or trunk in his home where he resided with his wife in Calvert County, Maryland.” For all practical purposes, all of the four pass books used the same language, but there is a difference between the two banks in the reading of the ledger sheets used by each of them to record the transaction among the banks’ records. The ledger sheets of the County Bank use the identical words which appear on the pass book. However, neither the ledger sheets nor the signature cards of the National Bank show a trust to exist.

At Mr. Whittington’s death, the appellant received the sum of $1,500.00 representing proceeds of an insurance policy on the life of the deceased; a nominal amount from a fraternal group and the sum of $2,000.00 that she had placed in the joint savings account with the deceased. ⁸ A will of the deceased, dated July 15, 1946, was admitted to probate by the Orphans’ Court of Calvert County. The deceased dévised an eighty-eight acre farm to his daughter and left to a nephew a second farm but conditioned the devise to the nephew upon his paying the sum of $1,000.00 annually to the widow of the decedent (appellant) and his allowing appellant the privilege of living in the home with the nephew. The residue of the estate was devised equally to his two sons (appellees). The inventories returned to the Orphans’ Court disclose that the two farms are appraised at $13,200.00 and the personal estate at $12,016.45.

The appellant renounced the will and will receive one-third of decedent’s net estate. I Appellant concedes that “the facts of this case would seem to indicate that the decedent did create a valid trust in the two accounts at the County Trust Company”,, but contends that the two accounts opened at the National Bank are not valid joint savings bank deposit trusts. The principle applicable to this issue has been concisely stated by Judge Forsythe in Ragan v. Kelly, 180 Md. 324, at 330-331 , 24 A. 2d 289 , at 293: “The circumstances under which deposits were made vary in many instances, but certainly since the decisions of this court in the Milholland-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 the survivor depends entirely upon the actual intention of the original owner of the fund at the time he had ⁹ the entry in the bank book made.” See also Bradford v. Eutaw Savings Bank, 186 Md. 127, 134-135 , 46 A. 2d 284 , and cases there cited; Grimm v. Virts, 189 Md. 297 , 55 A. 2d 716 ; Collier v. Benjes, 195 Md. 168, 177 , 73 A. 2d 21 ; Hancock v. Savings Bank of Baltimore, 199 Md. 163, 170-171 , 85 A. 2d 770, 772-773 . Appellant acknowledges that entries on the pass books at the National Bank do raise a rebuttable presumption that a trust was created but urges that this presumption is rebutted by an alleged lack of testimony that the decedent authorized the bank to create the trust accounts and by the signature cards in which the words “in trust” do not appear. The principal difference between the form of account as stated in the passbooks and as stated on the signature cards, so far as material in this case, is that the words “in trust” appear in the passbooks and not on the signature cards. If this creates a conflict between the two, the form employed in the passbooks, though not signed by Mr. Whittington, would seem to be controlling in the light of the testimony of the bank officer who handled the opening of those accounts as to the relative importance and the respective functions of the passbooks and of the signature cards.

The passbooks were delivered to Mr. Whittington simultaneously with the opening of the accounts, they were accepted by him, they were apparently the only records of the establishment and terms of the accounts which he kept in his