OpenJurist

MILLER V. CLARK.

15

. special defenses pleaded on behalf of certain the ,defend,ants, :which in our opinion are good, but the view we have taken of complainants' ,case it unneCessary to, discuss them. The bill must be dismissed. ' , BOND, J., conc,urs.

(Oircuit Oourt, D. Oonnectfcut, OCtober 5, 1889.)

C., a married woman, having some $11,000 in her name In a savings bank, In aooordancewith a previously expressed intention direoted the bank teller to transfer $1,500 to each of three nieces, which he did, charging' her account with 14,500. :On her desire the bank-books be so made tbat, the money could not bedra:wn her hfeJ the teller indorsaa on the pass-books: "Only Mrs. C. has power to ·draw. , ,C. ana her nieces wrote their names in the signature book, the word "Trustee" added to that of C. by the teller. The books \Vere.giyen C., who, during'her lifel declared that she was trustee as to this money fO,r her meces. The ,'niecesllCC6Ptea the gifts in the life-time of C. ,Held a valid, gift 4tnter Vi1lO8j aDd · that, owing, to the eiltpress ,declaration of trust by C., nopessation of control over , 'the property given waB'nece8sary. . '" ' , , ,a,: EvI»BNO... : ',' r , , of declarations and acts of t,he dollor ,at or about the ,time ,of the acceptance Of the gift, showing her purpose lD transferring the deposits to her %lieces, was admilsible. ", ' ",' ,
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1.

GIFTI'-InBB VIVOS.

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Il}, EAuity. Ja'1TlfJt p. ,McMalwn J, ,M. Buckingham, for 'complainflnt. W.l,t; 'Bennett and W.' B. ,Stoddard, forqefendants.
This is a bill in equity byone althe residua,rjrIegawi1l.ofIreneClark, deceased, to compel three of ,the defendants. deliver to the llxecutor of said will three: savings bank books , alleged 'to be in their possession, and to the executOr tQleceive , said books, to inventory the, deposits named therein as, a ,of the assets ofsai4 estate, and to collect the amount due thereon for the bene. fit of said Mrs. Irene Clark, of Milford, Conn. ,. died in'April, ;1.887, leaving a last will, wb,ich was executed in November, 1881, by which, after a specific .legacy to her husband, she gave all. the ,rest of her estate to six meces, Irllne M.und Martha A. Buckmgham, Emma J .. and Mary ,Belle Clark, Ellen C. Platt, and. Rosalie to be · equally diyided between said persons; and appointed Clark, the husban4 of said J., her executor. , At the tIme of her death . she ",asilOm 76 to 78 years old, without childrell, the seconq. wife of ; Bela Cl.ark,,to whom she'was married late . inlife.Her ,wlll'e,:a a, brother, divers ,andgJ1l:tl4pieces. Her .property, besIdes a ,small amount of ang ,wearing, apparel, to. · of 15,1!384, :she had ".· pf In

SHIPMAN, J.

to

16

FEDERAL REPORTER, vol.

40.

pursuance of a' previously expressed she went to said bank on eaid day, accompanied by Mrs. Nellie C. Platt, gave the teller her bankbook to be written up, and 'directed that $1,500 should be transferred from her account to each one of the three defendants, Nellie C. Platt, ' Emma J. Clark, and Mary Belle Clark. This was done, and three new accounts were opened in the names of said three persons, whereby each was credited with $1,500, and Mrs. Clark's account was corresponsively reduced $4,500. Three new pass-books were made out in the names of said three new depositors, and were given to Mrs. Irene Clark. She told the teller that she'wanted to have the bank-books so fixed, or that,th,e money should belong to the persons named, the entries but so fixed that they could not draw it and spend it during her life. 'fhe teller1hereupon entered (he pass-hooks the words: "Only Mrs. ,Irene Cla:tk has power to draw'. "The ledger accounts were in the nl;tmes 'i)f said three persons. The said bank has a "signature book" so called, ,in, which are entered each depositor, and, when trust accounts are opened, the signatures of the trustee and of theceatwi que ,trUst., Other faptain regard to ,the depositor or the cestui que t1'U8t arEl also "entered in this'book for the purppse of identification., Mrs. Irene Clark on this day wrote her name itdhesignature book, to which the teller added, in writing, the word "Trustee," but it did llot clearly appear when ,the wordw4S written. "Mrs'. Plattjyroteher name in the book opposite the number of her pass-qook, and the ,two Signatures were included, in a bracket. The words, "Mrs. Clark onlyto draw," were also written in the Blank slips for the other two donees to sign, and margin by upon which to state the 'required facta, were givehtoMrs. Clark. Upon her return to Milford, on that day, sheshowed·thehusband of Mrs. Platt the three said she had given the ,girls $1,500 showed the two slips, and instructed him to have the two other nieces informed thai theyIIlust be signed and returned to the bank. These slips she kept. III a few days the said two nieces were informed that , their aunt had given to each a bank-book of $1,500, and that she wanted "'them to come to her house and get some slips to sign and return to the bank. The slips were obtained, signed, and returned to the bank, and the portions containing the signatures of theceatuis que t1'U8t were pasted i'il the signature book, opposite the respective numbers of the books. The other facts were entered by the teller and some other clerk. , After 'th?signature.s were pasted in book,-but how long after did not appear,--theteller also wrotethe words, "Mrs. Irene Clark, Trustee," besignature, and the, words, "Mrs. C!ll.rk only to draw," in the ,margin. Thepank-books were retained by Mrs. Irene Clark until a short time before her dtlath, when aU the seven Mnk-books in which she i was interested were intrusted by her to Mrs. Platt, for some purpose not , known, and were, at therequest of Mrs. Clark, retui-nedto her three or death. ,This request to returnW8& manifestly to her husband. has ever been ,drawn upon the 'satisfy' and either as principal or interest. Other.testithree . mony ih regard to the exeouted purpose'of" Mrs. Irene Cl8.rk to give the

MILLER '/J. CLARK.

17

three deposits of $1,500 each to the said three persons, as declared by her after her return from New Haven and before the acceptance of the gifts by the absent nieces, and also about the time of and either before or soon after said acceptance, was given. Her executed and completed intention to give said deposits to the three donees, the actual gift, its consummation by an acceptance on their part, and ber express declaration of trusteeship during her life, of the said moneys for the benefit of the named persons, were clearly proved. Her purpose to give the sev.eral sqInSIlO thaUhe funds should belong to said parties, and to create a trusteeship thereof in herself during her life, was plainly declared at the bank, al1,o. was honestly, and, so far as appears, at the request of Mrs. Irene Clark only, attempted to be carried out by the teller in accordancewith her wishes by the entries which he made upon the books of the bank and the pass-books. . The facts bring the case within any rule which has been laid down in regard to the validity of gifts inter vivos. The courts of last resort in Massachusetts and in New York differ from each other in regard to the absolute necessity of an acceptance of the gift of the donee, (Gerrish v. Institution, 128 Mass. 159; Martin v. Fil/rlle, 75 N. Y. 134;) but there can be no doubt that the donees in this case knew of and accepted, the gifts. The authorities unitedly declare that the gift may be made by delivering to the donee, or by the creation of a trust in a third person, or in the donor; and that, where there is an express declaration oftrust in the donor, the rule which requires cessation of control and dominion by the donor over the personal property which is given, is hot applicable. Milroy v. Lord, 4De Gex, F. & J.264; Young v. Young, 80 N. Y. 422; Scott v. Bank, 140 Mass. 157, 2 N. E. Rep. 925; Minor v. Rager8, 40 Conn. 512; Boone v. Bank, 84 N. Y. 83. Testimony in regard to the declarations and acts of the donor which were made or which took place before or about the time of the acceptance of the gifts, and which declared her purpose in transferring the deposits to the donees, was objected to. This species of testimony is wont to be admitted in this class of cases for the purpose of showing the intention of Mrs. Clark in making the trang. fer· and holding the books, and of showing the character of said acts. BeaU v. Bank, BUpra. These statements, being also against the interest of Mrs. Clarkj and tending to prove the fact of the gift, are admissible. By the statute of Connecticut, in actions by or against the representatives of a deceased person, the entries, memoranda, and declarations of the deceased relevant to the matter in issue may be received as evidence. .No testimony was given by any of the parties to the suit in regard to the acts or declarations of the donor. The complainant makes the point that, in case these transfers were gifts, they were in partial ademption or satisfaction of the residuary bequests nnder the will. Without stopping to consider the question whether the principle of the ademption of a general or specific legacy is applicable to the case of these residuary legatees t it is sufficient to say that the testimony proves the existence of an iriteht - oil the part of the testatrix that the gifts were- to have no reference to the teIJtamentarydispositionofher property. Letthe hill be dismissed. v.40F.no.1-2

I'EDERALR:\llPORTER,

vol. 40.

et ale

OARRINOO'Oll':·.". LENTZ

(O«rcu,(t Oourt, E. D. Missouri, E. D. September 24" 1889.)
1.

VBNDOR ',urn VENDBB-Broiu.

Complainant land aeed from B., who was alleged to have bougM it from the county. There was no direot evidenoe of a sale to B., but it appeared that the county had taxed the land; and he had paid the ta.xes; that In a book preserved in. the oince of but not one Of the records of the oounty, thereWaB a statement of the sale to him i that in one of the oinc.li1.l bo.oks there was an entry of money received from bim 1n payment for the land; and it appeared from one ,certiftoate"signed by the register of the county, that the land had been sold to B., . and from anot4et:t signed by therooEllver of the oountYt that he had paid for it. the land from the county' DutitW8B proven that he Defendant afterwards had aCcess to all :,of the recordll, and .l\ad.notice before thesil.le was completed that oomplainant claimed thepr9perty. ·,Beld, that the equitable tItle was in complainant, lUU1 defendant. would be compelled to convey the legil.l tItle to him.

FIDE

PUBO!tA.SEBB-EQUITABLE TITLE.

. ,. The fact tbat.,. d,efjmdlWt holdl! a contract in respect to t\J,e land and refull6s to . produce it, will justify a i!ecrie d,i'veliting him of au, title, and SUbjecting him to ,costs with the otllerdefetldants.·.., , . . , &W,\STE-WRQ Is LiABLE. :' '".:' ,. ,.".. , Though. a defendant assisted .in· obtil.lning thetttle, yet, if he did not take .part 'in, or recMve benefit from, the 'to the property,' damages will not be \leoreed againsthi'm. ' " . '" . "

ll. .CoSTs-REFUSAL TO DISOLOSB INTEREST.

: In

I

E.

.H. Olopton, fo.r defendan1;s.,: . ,

oflegal title.

O.J. case.isabillfiled by , that .b,e the equitable tit;I.e to.o, tract of county.; that thelegal title.j.sin defendants;anll seeking to.$arge them . :compel the vesting oftpe.legal title..in.him; to recover possessiqnj .for.waste. The .land is what as "swaw.pJand.lI 'rhe defen4ant Potter obtained title from the county , in 1887;;· Complainant insists tllat iJ;l. La57 one:James Stunson bought ,and pai4for the land. By the act of September 28, 1850, .the; lands in 1\iissouri .were granted to the state of Missouri. 9 U. S. St..at Largej By the act of the legislatnreofMisf30uri ofM:arch 3, 1851, (Laws l8Sh p. 238,) and the act.:of February 23, 1853, (Laws 1852-53, p. ,l.08,) the title to these to .the cO\lnty Butler. 8<rheld py the supJ:eme court of the in Linville v. .:8ohanan, 60l\{o. 554, and ;,¥itchelf, v. Nodaway C'ounty,80\Mo. 264. ,Bytheact of Marcb 1,1855, .(Laws. Mo. 1854-:-55, p. 154,) the c1erl,ts of.;the several county courts werem!;lde ez offipio .and the treas;urers ez offidQ, receivert'l, for the pUl'poseqf performing all d\lties in respect·to the sale of lands ini;h,eirrespectivt;l counties. By other statutes the counties were authorby an act of November 5, 1857, (Laws 1857, p. 258,) slliles, ,ratified. .. . . ' ... pivotal queliltion is wl,lether Stuqscin bought and for There.,is no direct· of . purchase or paySt;unson; is· dead. It that the land was taxed by ,the qnderhim, paid coputy,anf! that. Stunson,l!ond.those
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