Wilson v. Crocker First National Bank

NOURSE, P. J.

Plaintiff sued to quiet title to a fund in a savings account deposited by her deceased husband. The defendant had judgment, and the point of plaintiff’s appeal is that the evidence and the findings do not support the judgment.

Plaintiff and the deceased were married in 1920, and lived together continually until the death of the husband on July 22, 1934, at the age of 84 years. The deceased left an estate of approximately $95,000, of which he bequeathed to his wife $15,000 and devised the apartment house in which they were

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residing appraised at $9,000". The residue of the estate was left to distant relatives. On February 26, 1934, the deceased was confined to his bed with a serious illness from which he subsequently died. At that time, in the presence of a witness, he called his wife to the bed and asked her to get the pass-book from a closet in which he kept his personal effects and to bring it to him. When the book was handed to him he returned it to the plaintiff and said, “This is your book. This is for you, Marie. I give this to you. It is not in the will.” In April, 1934, the wife handed to him two dividend checks amounting to $390 which the husband returned to her after endorsement, saying, “These are for you; put these into your book. ’' This sum was thereupon deposited by the plaintiff in the account evidenced by the pass-book. In June of the same year his wife handed to him two dividend checks amounting to $335. These were endorsed by the deceased and handed to the plaintiff with the remark, “Put this to one side where you can draw it any time you are in mind to but don’t disturb my gift.” This sum was deposited by plaintiff in a separate account and used for the expenses of the last illness of the deceased. On the day before his death the deceased called his wife and for the first time informed her of the contents of his will. He then said, ‘ ‘ I made a mistake. I am sorry what I have done to you. That book will be a help to you.”

Upon this evidence the trial court found that the deceased handed over and delivered to plaintiff the savings pass-book, and that plaintiff took possession and maintained control over the book until after the death of the husband, but that the deceased did not intend to give to plaintiff the monies evidenced by the pass-book. All the evidence demonstrated a complete and valid gift of the pass-book. There is no intimation of fraud or undue influence on the part of the plaintiff. Her evidence is corroborated by another witness, and the trial court found this evidence to be true. There was no evidence to the contrary and no evidence of any character to support the conclusion that an intention to transfer the monies on deposit was lacking. The defendant offered some testimony tending to show that the deceased had not surrendered complete dominion of the fund because he had not revoked an earlier authorization to the bank to pay certain charges out of the fund, and that plaintiff did not assume com