Freese v. Odd Fellows' Savings Bank

BEATTY, C. J.

The plaintiff, as administrator of the estate of Philip Collan, deceased, sued to recover a sum of money which had been deposited by Collan during his lifetime with the corporation defendant.

Patrick Crosby was allowed to intervene in the action upon his claim that the deposit had been given to him by Collan a short time prior to his decease. The defendant, upon payment of the money into court, was dismissed from the action, and the only issue left to be determined was that arising upon the intervener’s allegation of a gift of the deposit. This issue was tried by the court without a jury, and upon a finding that the allegation was not true judgment was given for the plaintiff. From that judgment and from an order denying his motion for a new trial the intervener appeals, basing his appeal upon the sole ground that the finding of the court that there was no gift is contrary to the evidence.

The only evidence of the alleged gift was the deposition of the intervener himsef, wholly uncorroborated. In this state of the ease it would be necessary, in order to reverse the judgment or order appealed from, to hold as matter of law that when a sum of money deposited in a savings bank is claimed after the death of the depositor by a person asserting title as a donee, the trial court has no discretion to reject such claim if it is supported by a deposition of the claimant to the effect that the gift was made, unless there is contradictory evidence, or such inconsistencies in the deposition itself as to render it

felo de se.

[664]

This, we think, would be a very dangerous doctrine to establish, and one for which it would be difficult to find a precedent. It will not do to say that when a man is dead his property must be awarded to any one who can testify without contradicting himself that it was given to him by the mere oral declaration of the decedent during his lifetime. In such case there is no possibility of direct contradiction. The lips of the alleged donor are sealed, but there is a presumption which takes the place of his testimony for the protection of his legal representatives. It is not in the ordinary course of human affairs for men to dispose of their property in that way, and when such a disposition is asserted by the claimant against the representatives of a dead man a court is certainly at liberty to refuse credence to his statement, however consistent with itself it may be. And when the trial court has rejected his testimony,—necessarily upon the ground that it is incredible, —it would be a startling innovation for this court to practically make an affirmative finding of a gift by reversing the decision of the trial court and remanding the cause, with directions to find in favor of the alleged donee, if the testimony on a new trial should be substantially the same. The credibility of witnesses is for the trial court,—not for us,—and a presumption is sufficient to sustain a finding against the positive evidence of a party upon whom is cast the burden of proof. This principle is not affected in its application to the present case by the fact that the intervener’s evidence was given by deposition. It seems to be conceded that if he had appeared in court and given his testimony orally in the sight and hearing of the judge we could not then have set aside an adverse finding, because in that case it would be assumed that something in his appearance or manner on the stand, observable by the trial judge, but hidden from us, had justified a rejection of his testimony! But it is argued that since the trial judge did not see or hear him, and since his deposition is fair on its face and uneontradicted, we must hold it true as matter of law, and, in effect, make an affirmative finding of a gift over the head of the court of original jurisdiction.