Opinion
No. 57-554.
03-29-1926
COMMERCIAL TRUST CO. OF NEW JERSEY v. WHITE et al.
Fisk & Fisk, of Jersey City, for complainant. August G. Menge, of Jersey City, for defendant Lettie A. White. Pierre F. Cook, of Jersey City, for defendants Etta Bullis Wood and others.
(Syllabus by the Court.)
Suit by the Commercial Trust Company of New Jersey as executor of John J. Bullis, deceased, against Lettie A. White and others, to determine the ownership of special or savings accounts, standing in the joint names of J. J. Bullis and Lettie A. Dath, who afterwards married Sidney White. On the death of Mrs. Lettie A. White, after filing her answer, the suit was revived against Sidney White, her husband, as the executor of her will. Certain accounts decreed to belong to the estate of Lettie A. White, and other accounts decreed to belong to the estate of John J. Bullis.
This suit is brought to determine the ownership of nine special, or savings, accounts in banks in this state, all standing in the joint names of John J. Bullis and Lettie A. Dath. Mrs. Dath was Bullis' sister, and some time after the accounts were opened she married Sidney White. Bullis died April 10, 1924, Mrs. White surviving him, and the complainant is executor of his will. The bill of complaint alleges that all money deposited in the accounts was owned by Bullis, and that Mrs. White deposited no money in any of them, which allegation Mrs. White, by her filed answer, admitted. The bill further alleges that some legatees under Bullis' will claim that Bullis opened the bank accounts in said joint names without intending to vest any right therein in Mrs. White, and that her name was used in the accounts as a matter of convenience for Bullis in making withdrawals therefrom, which allegation Mrs. White, by her answer, denied. Shortly after filing her answer, Mrs. White died, and the suit was revived against her husband as executor of her will. The contest here is between the executor of Bullish will and certain legatees thereunder on one side and the executor of Mrs. White's will on the other.
The pass books for all the accounts contain a provision to the effect that no withdrawalscould be made from the accounts without production of the pass books, and at Bullis' death all the pass books were found in a safe deposit box originally rented by Bullis April 16, 1914, but for three years preceding his death held in the joint names of John J. Bullis and Sidney White, under rental conditions which gave Bullis and White and each of them and the survivor right of access to the box. No testimony was offered to show that the books had always been kept in this box; neither was there any testimony of any statement made by Bullis or Mrs. White before, at the time, or after the accounts were opened, which would throw any light on the purpose or intent with which they became joint depositors. Following is a statement of the pertinent facts concerning each bank account:
Hoboken Trust Company.
Opened October 7, 1914, in the names of "John J. Bullis or Lettie A. Dath." Both signed the signature card, but there is nothing thereon to show the purpose with which the account was opened.
On the cover, and on an inside page of the pass book, are the printed words "Hoboken Trust Company, in account with," following which are written the names "John J. Bullis or Lettie A. Dath," and nothing more.
There were no withdrawals. Lincoln Trust Company.
Opened originally January 3, 1910, in the names of "John J. Bullis or Emma F. Bullis," by a signature card on which appear the signatures of said depositors. October 7, 1914, the name of Emma F. Bullis was inked out, and the signature of Lettie A. Dath taken on a new card. No new account was opened, and the balance then to the credit of the original account was carried along in the changed account. There is nothing on the old or the new signature card to show the purpose with which the account was opened. On the cover and on an inside page of the pass book are the printed words "Lincoln Trust Company in account with," following which were written the names "John J. Bullis or Emma F. Bullis." The name of Emma F. Bullis is inked out and the name "Lettie A. Dath" written thereunder. On the cover, but separate from the other words, are stamped the words "either or the survivor to draw."
There was one withdrawal by draft signed by Bullis for the amount of interest previously credited.
Hudson Trust Company.
Opened October 7, 1914. The signature card contains the following:
"Either signature to draw. This account is opened by us and intended to create a joint estate to us as joint tenants and not as tenants in common. [Signed] John J. Bullis,
or
"[Signed] Lettie A. Dath."
On the cover, and on an inside page of the pass book, are written the names "John J. Bullis or Lettie A. Dath," under which, in both places are stamped the words "as joint tenants and not as tenants in common," and on the cover and inside the book, but separate from the other words, are stamped the words "either signature to draw."
There were two withdrawals, both on drafts signed by Bullis, in each case for an amount of interest previously credited.
Commercial Trust Company (No. 1813).
Opened originally January 14, 1904, in the name of Bullis alone. Later the name of Emma F. Bullis was added, and subsequently erased, and the name of Lettie A. Dath substituted October 7, 1914. A new signature card was then made out, on which appears the following:
"This account and all money to be credited to it belong to us as joint tenants, and will be the absolute property of the survivor of us; either and the survivor to draw. We do each appoint the other attorney irrevocable with power to deposit in said joint account moneys of the other, and for that purpose to indorse any check, draft, note, or other instrument payable to the order of the other.
"[Signed] Lettie A. Dath,
"John J. Bullis."
The pass book shows it was issued in the name of John J. Bullis or Emma F. Bullis, "either and the survivor to sign," and that the latter name was stricken out and the name "Lettie A. Dath" substituted therefor.
There were four withdrawals on drafts signed by Bullis, one of which, dated April 12, 1916, for $3,500 was used to open a new account (No. 9873) in the same bank in the names of John J. Bullis or Lettie A. Dath. There were also two withdrawals on drafts signed by Mrs. Dath, one dated June 25, 1923, and the other dated September 27, 1923.
Commercial Trust Company (No. 7236).
Opened originally June 27, 1911, in the names of John J. Bullis and Emma F. Bullis. The name of Emma F. Bullis was stricken out and the name "Lettie A. Dath" substituted October 7, 1914. A new signature card was then made out, on which appear the same words as in the account last above, with the signatures "John J. Bullis, Lettie A. Dath" appended.
The pass book shows it was issued in the names of John J. Bullis or Emma F. Bullis, "either and the survivor to sign," and that the latter name was stricken out and the name of Lettie A. Dath substituted therefor.
There were two withdrawals on drafts signed by Bullis; also two on drafts signed by Mrs. Dath, one dated January 16, 1922, and the other dated June 8, 1922. All four drafts were for amounts different from the amounts of interest credits.
Commercial Trust Company (No. 9873).
Opened April 12, 1916, in the names of John J. Bullis or Lettie A. Dath, by draft signed by Bullis against Commercial Trust Company account No. 1813. On the signature card both names appear signed under the same words as were used in account No. 1813 of the same bank. The pass book shows it was issued in the names of John J. Bullis or Lettie A. Dath, "either and the survivor to sign."
There was one withdrawal on draft signed by Bullis; also one on draft signed by Mrs. Dath, dated January 16, 1922. Neither draft is for an amount of interest credit. Hoboken Bank for Savings.
Opened October 7, 1914, in the names of John J. Bullis or Lettie A. Dath. Their signatures appear below an agreement which, In effect, states that they have deposited the sum with which the account was opened, and that they request the bank to open an account with them in their names; that they are the joint owners of the money deposited and thereafter to be deposited and of the interest accruing thereon; that, upon the death of either, the moneys then on deposit shall become the property of the survivor; that each, or the survivor, may at any time draw against the account. The pass book was issued in the names of "John J. Bullis or Lettie A. Dath, payable to either or survivor."
There were two withdrawals, both on drafts signed by Bullis for the amount of interest previously credited.
Provident Institution for Savings (two accounts).
Both opened January 5, 1915, in the names of "John J. Bullis and Lettie A. Dath." The signature cards signed by them are identical, and contain the following:
"This account and all money to be credited to it belong to us as joint tenants, and will be the absolute property of the survivor of us; either and the survivor to draw upon producing consent of any public officer required by taxation laws."
The pass books were issued in the names "Lettie A. Dath and John J. Bullis."
There were seven withdrawals from one account and eight from the other, all on drafts signed by Bullis. In each case these withdrawals, except the first one on each account, were for amounts of interest credits.
Fisk & Fisk, of Jersey City, for complainant.
August G. Menge, of Jersey City, for defendant Lettie A. White.
Pierre F. Cook, of Jersey City, for defendants Etta Bullis Wood and others.
FIELDER, V. C. (after stating the facts as above). In opening the accounts, Bullis had either a donative intention of a then present gift to Mrs. White of an interest in the moneys deposited therein, with the right to receive what remained to the credit thereof at his death in case she survived him, or an intention merely to use her as a convenience in withdrawing money for him in his lifetime, with no beneficial interest to her in the money, except perhaps after his death, in case she survived him. There being no direct testimony to show what his purpose was, the rights of the donor and donee must be determined upon the effect to be given the writings which they signed and delivered to the several banks, in connection with the surrounding circumstances.
Taking up first the accounts with the Hudson Trust Company and the Lincoln Trust Company: The form of the deposits as appears from the signature cards is not evidence of a gift to her to take effect in prsesenti (Schick v. Grote, 7 A. 852, 42 N. J. Eq. 352; Skillman v. Wiegand, 33 A. 929. 54 N. J. Eq. 198; Taylor v. Coriell, 57 A. 810, 66 N. J. Eq. 262; Gordon vt, Toler, 89 A. 1020, 83 N. J. Eq. 25; McCullough v. Forres, 92 A. 595, 84 N. J. Eq. 101; Morristown Trust Co. v. Capstick, 106 A. 391, 90 N. J. Eq. 22; affirmed, 108 A. 926, 91 N. J. Eq. 152). In the case of the Lincoln Trust Company account, the words "either or the survivor to draw," stamped on the pass book, are not found in the contract entered into between Bullis, Mrs. White, and the bank. They were evidently placed on the pass book by a bank official or employee. Nothwithstanding that these words are in plain sight on the pass book, which is assumed to have been always in Bullis' possession, in the absence of any evidence that they were placed there by his direction or consent, I think they should not be considered for the purpose of enlarging or explaining the signature card contract signed by Bullis. Taking the signature cards, then, as showing the entire contract between Bullis, Mrs. White, and these two banks, in connection with the fact that all money in both accounts originally belonged to Bullis, that it does not appear that Mrs. White ever had possession of the pass books evidencing these accounts, that she never withdrew money from either account and could not withdraw any in Bullis' lifetime without producing the pass books, I can find no donative intent by Bullis to give Mrs. White a then present interest in these two accounts. The form of these deposits indicates that, if he had any donative intent toward her, it was confined to such balance as might remain to his credit at his death, which interest should not vest in her until that time, thus making his gift a testamentary disposition of funds without complying with the law of wills, and therefore void. I reach this conclusion upon the authority of the decisions above cited and the decision in Stevenson v. Earl, 55 A. 1091, 65 N. J. Eq. 721, 103 Am. St. Rep. 790, 1 Ann. Cas. 49. The amounts standing to the credit of theaccounts in the Hoboken Trust Company and the Lincoln Trust Company will be decreed to belong to Bullis' estate.
Taking up next the remaining accounts: The form of deposit used for these accounts is evidence of a gift to Mrs. White to take effect in præsenti, and it is settled law in this state that, under such forms, the balance to the credit of the accounts belonged to Mrs. White on the death of Bullis (Morristown Trust Co. v. Capstick, supra; New Jersey Title, etc., Co. v. Archibald, 108 A. 434, 91 N. J. Eq. 82), unless it appears from the surrounding circumstances that he had no donative intent in naming her as joint owner with him.
First, it is contended that the fact that all moneys deposited in these accounts originally belonged to Bullis is a circumstance to be considered. But under the forms of deposit which we are now considering this fact is immaterial. New Jersey Title, etc., Co. v. Archibald, supra.
It is next contended that the provisions of Bullis' will negative the idea of an absolute gift to Mrs. White of any interest in the seven accounts now in question. His will is dated December 9, 1914, and by it he bequeathed legacies for a total of $19,600, which includes a bequest of $7,000 to Mrs. White, and he provided for distribution of his residuary estate. The inventory of his estate shows gross personalty of approximately $10,000 (exclusive of all bank accounts involved in this suit, which total approximately $45,000. Whether or not he left any undevised real property does not appear, but I shall assume he did not. It is argued that he would not have given Mrs. White a legacy of $7,000 had he intended her to have his bank accounts, and that he would not have provided for $19,600 in legacies from an estate of but $10,000. I consider this argument mere speculation, and, since we have in writing the plain and unambiguous things he did, I am not willing to guess that he had something in mind other than what he said. In the absence of evidence to the contrary, he is presumed to have known the effect of the agreements of deposit entered into with Mrs. White and the banks. He had opened six of his nine accounts two months prior to the date of his will, and I have found that two of them, for a total of over $9,000, were opened in such form that they could not be paid to Mrs. White as his survivor, and he is presumed to have known that she would not receive the moneys in these two accounts. Why he opened two more accounts less than a month after the date of his will and a third account about 16 months after the date of his will (the three for a total of $17,000), in such form that he gave Mrs. White a present interest in them, with the right to receive the balances credited to them on his death, I do not know, and I do not think, that any one can speculate safely that he had an intention different from what his agreements with the banks said he had. He died more than 9 years after the date of his will. I might guess that, when he executed his will he had an estate (exclusive of the money in bank) ample to pay the legacies provided for in the will. In fact, less than a month after the date of his will, he opened two of the bank accounts now in question for a total of nearly $12,000; the money so deposited coming from some source other than the bank accounts involved in this suit. I might also guess that, when he executed his will, he hoped and expected to leave sufficient property applicable to the payment of legacies. I might also guess that, after he had executed his will, he decided to give his sister, Mrs. White, a greater interest in his estate than he had already provided by bank accounts and will, and therefore he opened three more bank accounts and made them payable to her, jointly with himself, with right of survivorship to her. But, as I have said, these matters of speculation cannot be used as factors in determining Builis' intention, and so I cannot use the provisions of his will as evidence that he had an intent with regard to the bank accounts contrary to the terms of his written agreements with the banks.
It is further contended that there being no delivery of the pass books to Mrs. White, the gift to her was not complete because she was unable to draw money from the accounts without possession of these books. One of the essentials of a complete gift inter vivos is that there must be a delivery of the gift to the donee, and, in case of a chose in action, the delivery must be of such a nature as the subject-matter of the gift is most capable. Where the subject-matter is a certificate of stock, a bank account, or other chose in action standing in joint names, delivery cannot be made to, and possession is usually not held by, both or all joint owners at the same time, and delivery to one must, in the nature of things, be a delivery to the other or others (Dunn v. Houghton [N. J. Ch.] 51 A. 71; East Rutherford B. & L. Ass'n v. McKenzie, 100 A. 931, 87 N. J. Eq. 375), and, since in the present case only one of the joint owners could hold the pass books (unless they were kept in a box or some place to which both could have access), the donor was the natural one of the two to hold them. After all, the gift was not of the books but of the moneys in the accounts, and the books were but the written record issued by the banks of the items of debit and credit to the accounts, and the provision that no withdrawals could be made without presenting the books was mainly for the protection of the banks when called on to make payments. Of course, a donor who desired to guard the accounts against unnecessary and improper withdrawals could take advantage of, and have protection under,such provision, but, had the pass books come into Mrs. White's possession in Bullis' lifetime, and had she used them to draw against the accounts, can it be doubted, on the facts here present, that she would have been entitled to hold the amount of her drafts as against Bullis? There is no evidence that the pass books were always in Bullis' possession and, if it is to be assumed that they were, it is to be noted that, for the last 3 years of Bullis' life, a safe deposit box in which they were found was rented in the joint names of Bullis and Mrs. White's husband under terms by which both and the survivor had access, and that the three Commercial Trust Company pass books were out of Bullis' possession as follows: Account No. 1813, June 25, 1923, and September 27, 1923; account No. 7236, January 16, 1922, and June 8, 1922; and account No. 9873, January 16, 1922, because entries in the pass books of withdrawals on those dates show that they were made on drafts signed by Mrs. White. The pass book on account No. 1813 of the Commercial Trust Company was also in Mrs. White's constructive possession March 12, 1916, when she and Bullis went to the bank, and $3,500 was drawn out on draft signed by him and deposited in account No. 9873 of the same bank, opened in their joint names under the agreement signed by them on that day. The real question seems to me to be: Do the facts show that there was an intention on Bullis' part to make a present gift of the accounts to Mrs. White, which the latter accepted by signing the deposit agreements? By the agreements with the banks, under which the accounts were opened, Bullis delivered his property to the banks, and procured from them a contract with, and for the benefit of, Mrs. White (as well as himself), and the banks became debtors to both of them. Thus a complete, valid gift or trust was made, under which the banks contracted to pay to Mrs. White, and I do not consider that delivery of the pass books into her hands was necessary to complete the contracts, at least so far as her right of survivorship is concerned (Dunn v. Houghton, supra; New Jersey Title, etc., Co. v. Archibald, supra; Meriden Trust Co. v. Miller, 90 A. 228, 88 Conn. 157; Scott v. Berkshire Bank, 2 N. E. 925, 140 Mass. 157; Alger v. North End Bank, 15 N. E. 916, 146 Mass. 418, 4 Am. St. Rep. 331). Further, can it not be said that Rullis made delivery of the pass books to a third person for Mrs. White? If so, such a delivery would be sufficient, even if the books did not come to Mrs. White's hands until after his death. Hoboken Bank for Savings v. Schwoon, 50 A. 490, 62 N. J. Eq. 503. I have said that for the last 3 years of Bullis' life it is assumed that the pass books were kept in a safe deposit box to which Bullis and Mrs. White's husband and the survivor of them were to have access. Mr. White had no interest in these bank accounts or in the pass books and it seems to me that, if Bullis kept the pass books evidencing accounts payable to Mrs. White after his death in a safe deposit box to which Mr. White had access in Bullis' lifetime and after his death, Bullis said to Mr. White, in effect, "I deliver these pass books to you to hold jointly with me. If you survive me, deliver them to your wife, to whom the balances to the credit of these accounts are payable upon my death."
Finally, it is argued that retention of control of these accounts by Bullis, through possession of the pass books, shows that Mrs. White was to have no beneficial interest in the accounts until after Bullis' death; hence the gift is void as an attempted testamentary disposition of the accounts. There having been a donative intent by Bullis that the gifts should take effect forthwith, that Bullis reserved an interest therein for his life, and intended that Mrs. White should not come into possession of her interest until his death, would not invalidate the gift as an attempted testamentary transaction contrary to the statute of wills. Green v. Tulane, 28 A. 9, 52 N. J. Eq. 169; Sibley v. Somers. 50 A. 321, 62 N. J. Eq. 595; Mullen v. Mullins (N. J. Err. & App.) 130 A. 628. Further, the form of these deposits created the relation of debtor and creditor between the depositors and the banks, under which the banks contracted with Bullis and Mrs. White to pay to Mrs. White, should she survive Bullis, all moneys the banks owed on the accounts, so that Mrs. White is entitled to the moneys under her contractual relation with the banks. New Jersey Title, etc., Co. v. Archibald, supra.
The amounts standing to the credit of the accounts in the Hudson Trust Company, Commercial Trust Company (three accounts), Hoboken Bank for Savings, and Provident Institution for Savings (two accounts) will be decreed to belong to the estate of Lettie A. White.