Opinion
No. 4481.
Argued May 1, 1956.
Decided July 6, 1956.
Where funds belonging to the mother were deposited in a bank under the joint names of herself and her son, with whom she was living, certain withdrawals therefrom by the son with her permission and in her lifetime could properly be found to have been payments for her board and room or gifts and hence these amounts were not recoverable after her decease by the administrator of her estate.
In such case, the burden of establishing that there was an implied obligation on the part of the son to repay the amounts, withdrawn in her lifetime, was upon the administrator of the mother's estate.
However in an action of assumpsit to recover the balance of the joint account which the defendant son withdrew after the death of the plaintiff mother and prior to the enactment of RSA 384:28-32 the burden of proving all the elements of a valid gift inter vivos was on the defendant; and the finding that the burden was not met was sustainable on the evidence.
ASSUMPSIT, for money had and received in the amount of $5,880.15 to and for the use of the estate of Emma Duhaime, late of Manchester, brought by Jean A. J. Chretien as special administrator against Romeo L. Duhaime, a son of the deceased.
During her lifetime, Emma had funds in Canada which were sent for by Romeo at her request. On March 13, 1950, the amount of $5,880.15 was deposited in the Amoskeag Savings Bank in an account entitled "Emma Duhaime or Romeo L. Duhaime." The signature card duly signed by both parties was marked "Joint Account" and authorized the bank to pay over any or all moneys in the account to either or to the survivor.
The Court (Grimes, J.) found that all six withdrawals from the account during the life of Emma amounting to $1,180, were made by Romeo and that none was made by him without the prior approval of his mother. The Court also found that "The deceased was living with her son, the defendant, Romeo, at the time the account was opened and continued to live with him until her death. She paid him board of approximately $30 a month and withdrawals were made by him for her from the account, part of which went for the payment of board and the balance for other necessary expenses, except for a withdrawal of November 8, 1950, which it is found was withdrawn with her permission to assist her son, Romeo, in the purchase of a new boiler for the home.
"Emma Duhaime died December 18, 1951, and on the following day the defendant withdrew the balance from the account which amounted to $4,933.89."
The Court ruled "that the burden of proving that a valid joint account existed which would entitle the defendant to the balance thereof upon the death of his mother is upon the defendant and that he has the burden of establishing all the facts essential to the validity of a valid gift inter vivos. The presumption is against joint interests and the burden of overcoming that presumption is on the one claiming a joint account. It is not found that the deceased intended to confer upon the defendant an equal right to withdraw funds from the account and appropriate the money so withdrawn, and it is, therefore, found that the defendant is not entitled to the balance remaining in the account at the time of his mother's death.
"The plaintiff has claimed the original amount which was deposited in the account but it is found that the plaintiff is not entitled to recover the amounts which were withdrawn from the account prior to the death of Emma Duhaime.
"Verdict is returned for the plaintiff in the amount of $4,933.89 on the condition, however, that the defendant be given credit for all reasonable, proper expenditures made on behalf of the estate."
Defendant's exceptions to the admission and exclusion of evidence and to the denial of his motion to set the verdict aside "as against the law, the evidence, the law and the evidence; and because the. Court fell into a plain error and mistake" were reserved and transferred.
Chretien Chretien (Mr. Jean A. J. Chretien orally), for the plaintiff.
Bois Bois and Broderick, Manning Sullivan (Mr. Manning orally), for the defendant.
Emma Duhaime died before the effective date of RSA 384:28-32 and therefore this case is not controlled by that statute. Bradley v. State, 100 N.H. 232. Defendant's main contention is summarized in his brief as follows: "The error we charge to the Court is that he found for the plaintiff because he believed and ruled that the burden was on the defendant to prove that he was entitled to keep the money withdrawn from the bank account. We maintain that the Court should have nonsuited the plaintiff because he failed to prove an implied promise by the defendant to repay the money?'
As to withdrawals made during the lifetime of the deceased the burden was on the plaintiff to prove that they were such as to create an obligation on the defendant to repay them instead of being in payment of a debt owed the defendant by his mother or a gift to him by her. Barrett v. Cady, 78 N.H. 60, 67; Harriman v. Bunker, 79 N.H. 127, 131. The evidence warranted the Court's finding that the plaintiff was not entitled to recover these amounts. They could be found to have been payments of her board and room, or gifts.
Even though the action be in assumpsit (see Barrett v. Cady, supra, 65) the withdrawal of the balance in the joint account made by the defendant after the death of his mother is governed by the principles in Dover c. Bank v. Tobin, 86 N.H. 209; Nashua Trust Co. v. Mosgofian, 97 N.H. 17; Cournoyer v. Bank, 98 N.H. 385. The plaintiff was seeking to recover money which it is admitted by the defendant was at one time the sole property of the deceased. Its deposit in a joint account in her name and that of Romeo was insufficient in itself to give him any ownership or interest in it. Cournoyer v. Bank, supra, 391. It continued to be and was the property of the deceased and the plaintiff was entitled to it, unless the actions of the deceased were effective to create a joint tenancy therein during her lifetime. Id., 388.
The burden of overcoming the "presumption in this jurisdiction against an intention to create joint interests in personal property" was upon Romeo. Dover c. Bank v. Tobin, supra, 210. He had the burden of proving all the elements of a valid gift, being all the facts essential to the validity of a gift inter vivos, as ruled by the Trial Court. Nashua Trust Co. v. Mosgofian, supra, 18.
The evidence did not compel a finding that the deceased intended to confer upon the defendant an equal right not only to withdraw funds from the account but also to "appropriate the money withdrawn." Cournoyer v. Bank, supra. The action of the Court being supported by the evidence and his rulings of law being proper the order must be
Judgment on the verdict.
All concurred.