Carr v. Carr

Action by Administbator—Defective Title Cured by Complaint.—■ The omission of the word “as” in the title of an action by an administrator is cured by clear and distinct averments in the complaint showing that the action is not brought by the administrator in his individual capacity; but as the duly qualified and acting administrator of the estate to recover moneys claimed to belong to the estate, and alleged to have been demanded by him, “as such administrator,” and to have been refused to be delivered to him “as such administrator.”

Id.—Judgment fob Administrator—Undisputed Facts—Legal Effect of Findings—Support of Judgment—Review upon Appeal.—Although judgment was for the administrator and against the personal defendant, who claimed the legal right to the money, yet where the facts are undisputed, and the single question presented upon appeal is as to their legal effect, and as to whether the findings of the undisputed facts warrant the conclusions of law and support the judgment, it is held otherwise, and that judgment should be ordered for defendant upon the findings.

Id.—Transfer of Bank Deposit—Joint Ownership of Father and Son—Survivorship of Besidue—Direction to Bank—Intention.—Where a bank deposit in the name of a father was transferred to the account of himself and his son as “joint owners,” with the unrestricted right of either to make withdrawals during their joint lives, with direction to the bank to pay the residue of the deposit to “the survivor” upon the death of the other, the intention of the father is thereby clearly manifested that, upon his prior death, the whole residue of the deposit should vest solely in the son.

Id.—Nature of Transaction—Creation of Trust.—While the transaction lacks the essential elements of a gift either inter vivos or causa mortis, yet the manifest intention of the father can be sustained through the agency of a trust, giving the son the right to share in the deposit during their joint lives, and upon the father’s death, to receive from the bank, as trustee, the remainder of the deposit in his sole and exclusive right.

Id.—Trust Fairly Implied.—If a trust can be fairly implied from the language used, as the intention of the parties, the intention will be executed through the medium of a trust. It is not essential to create a trust to use the words “trust” or “trustees”; yet there must be some words, it matters not what they are, which indicate with reasonable certainty a purpose to create a trust.

Id.—Facts Proved and Found—Creation of Trust Under Law.— Under our law, the father was authorized to create a trust for himself and his son, in the manner and form disclosed by the evidence; and testing the facts proved and found by the law, there appears one capable of creating a trust; the subject, purpose and beneficiary thereof clearly manifested; the acceptance of the trust by the bank as trustee, by accepting the deposit, subject to its conditions and provisions; and the acts and language of the father as trustee, indicating, with reasonable certainty, an intention to create a trust.