Opinion
No. 4255.
Argued December 2, 1953.
Decided December 21, 1953.
The sufficiency of the evidence to support a verdict may not be questioned as a matter of right for the first time after the verdict is returned but a party is entitled to raise any questions of law apparent upon the face of the findings and rulings made. Certain evidence was sufficient to support the finding that the defendant acquired no right to two savings bank accounts standing in the joint names of the defendant and his mother through gift or repayment of any debt from his mother for assistance rendered to her in her lifetime. Where the only interest a widow acquired by the will of her husband was that of life tenant with power of disposal, any funds unexpended at her death derived from the sale of property, formerly of her husband, are part of the residue of his estate and pass in accordance with his will. Income credited during the lifetime of the life beneficiary to principal derived from such sale which was not expended by her was not as a matter of law an asset of her estate. The fact that a probate decree authorized the transfer of certain stock certificates of the deceased to the life tenant, who had power of disposal under his will, did not as a matter of law establish her sole beneficial ownership of the property.
CASE, to recover certain moneys alleged to belong to the plaintiff as a remainderman under the will of James E. Colburn, late of Nashua deceased, who was the father of both the plaintiff and the defendant. The moneys in question are alleged to have come to the defendant's possession through two joint savings accounts established by Mabel E. Colburn, mother of the defendant and stepmother of the plaintiff, from funds held by her as a life tenant under the same will.
Trial by the Court (Leahy, J) who made certain findings and rulings and entered a verdict for the plaintiff in the sum of $4,946.21 The defendant took certain exceptions during the trial, excepted to certain findings and rulings made, to the denial of certain requests for findings and rulings, and to the denial of his motion to set aside the verdict. All questions of law so raised were reserved and transferred by the Presiding Justice.
James E. Colburn died on December 10, 1927. The material portion of the fourth clause of his will was as follows: "Fourth: All the rest residue and remainder of my property of whatever kind or nature and wherever situate I give, devise and bequeath the income thereof to my wife Mabel E. Colburn, for and during the term of her natural life. She to have the right, if said income should be insufficient to properly care for her, to use so much of the principal as may be necessary for her proper care, and my said wife, Mabel E. Colburn shall be the sole judge of what is right and proper for her suitable care and maintenance. After the death of my said wife, what remains of my property I give, devise and bequeath in equal shares to my daughter Lizzie B. McPhee and to my son J. Wesley Colburn."
The evidence according to the findings of the Trial Court established that on July 2, 1948, Mrs. Colburn sold one of two houses which were a part of the residue for a price of $12,500, less commission of five per cent. On the same date she opened a savings account with the Nashua Trust Company by a deposit of $4,733.38. This was a joint account in the names of Mabel E. Colburn and the defendant, payable to either or the survivor. On the same date Mrs. Colburn deposited the sum of $5,000 in a savings account with the Second National Bank which had originally been in her name and at some time was placed in the names of Mabel E. Colburn and the defendant, payable to either or the survivor. On the same date she also deposited $1,000 in her checking account at the Second National Bank.
On June 29, 1950, Mrs. Colburn received $4,335 from the sale of a voting certificate for fifty-one shares of United Life Accident Insurance Company which was among the assets of the estate of James E. Colburn and was later transferred to Mrs. Colburn under license of the probate court. On the same day she deposited in the savings account with the Second National Bank the sum of $4,335. This account showed a balance of $5,021.49 at her death on August 13, 1950. The Nashua Trust Company account remained untouched after it was opened and at Mrs. Colburn's death amounted with accrued interest to $4,870.93. No withdrawals were made by the defendant during his mother's lifetime, but both accounts were withdrawn in full in the latter part of August, 1950.
The Court found that the deposits so made "were from the proceeds received by Mabel E. Colburn from the sale of the house on Manchester Street and the sale of the Voting Certificate representing the fifty-one shares of United Life Accident Insurance Company."
The defendant claimed that the joint accounts were established, and the moneys on deposit therein given to him, by his mother in repayment of moneys previously expended by him on her behalf. The Court found that the defendant did make certain expenditures for the benefit of his mother, but "that this arrangement during the time that Mr. Colburn was living with his mother was as much to his advantage as to his mother's." It was further found: "No claim was ever made by J. Wesley Colburn against the estate of Mabel E. Colburn for any moneys advanced for the use of Mabel E. Colburn during her lifetime. There is no evidence from which the Court can find that there was any contract or agreement that Mabel E. Colburn would ever repay the said J. Wesley Colburn for any moneys he may have expended, and the Court finds that it was never the intention of J. Wesley Colburn to ever ask his mother for any payment to him, but that is now raised as an issue in this case solely for the purpose of defense." The Court ruled "that J. Wesley Colburn had no legal claim against his mother for reimbursement for any money he may have expended in her behalf."
The Court further found and ruled as follows: "It is the contention of J. Wesley Colburn that Mabel E. Colburn after depositing the money in the bank from the sale of the Manchester Street house and the stock certificate, gave him the bank books and told him that it was his money. The Court finds that J. Wesley Colburn is vague about this matter as to just when this gift was made, although he finally arrived at the date when the large deposits were made. During all the time that the money was thus deposited J. Wesley Colburn kept the bank books in his safe deposit box, but he exercised no control over the books. He permitted his mother to have free access to the books for the purpose of using the money. He would take her to the bank whenever she wanted to go, and as he stated to the Court, he owned the deposit box anyway and he kept the books in there and she could go any time she wanted and get them. The defendant was anxious to have it understood that he wanted to be on his own; that he never wanted any money from his mother and stated as a fact that he never received any money from his mother; that she had the use of her money any way she wanted it.
"It is the Court's finding that the attempted creation of a joint account with the right of survivorship with J. Wesley Colburn was never legally consummated and that J. Wesley Colburn never considered the money in the account as his or for his use in any way during his mother's lifetime.
"The Court finds that the amount of Five Thousand twenty-one and 49/100 Dollars ($5,021.49) which was on deposit in the Second National Bank, Nashua as of July 21, 1950 was part of the residue of the estate of James E. Colburn and that one-half of that amount belongs to Lizzie McPhee as a remainderman under the will of James E. Colburn. The Court finds that the amount of Four Thousand, Eight Hundred seventy and 93/100 Dollars ($4,870.93) which was on deposit in the Nashua Trust Company as of July 1, 1950 was part of the residue of the estate of James E. Colburn and one-half of that amount belongs to Lizzie McPhee, the plaintiff, as a remainderman under the will of James E. Colburn.
"The Court has been requested to rule that Mabel E. Colburn in disposing of the stock certificate and in selling the real estate acted as the sole judge of what was necessary for her care and maintenance, and that having converted the assets into cash that these assets were no longer part of the estate of James E. Colburn. The Court rejects this claim for the very simple reason that the assets came from the estate of James E. Colburn and that they remained after the death of Mabel E. Colburn and that she did not use the entire amount for her support and maintenance, whatever may have been necessary, and further that she acquired no right to lessen the estate of the remaindermen by any gift to J. Wesley Colburn." Other facts are stated in the opinion.
Louis M. Janelle (by brief and orally), for the plaintiff.
Hamblett, Moran Hamblett (Mr. Charles K. Hamblett orally), for the defendant.
The defendant seeks to question the sufficiency of the evidence to support certain findings of the Trial Court, although the issue was not raised before the case was submitted. In particular he seeks upon this ground to question the findings that on the death of Mabel E. Colburn the joint accounts were part of the residue of the estate of James E. Colburn, and that the defendant acquired no interest in the funds on deposit during Mrs. Colburn's lifetime. It is well settled that the issue of the sufficiency of the evidence may not first be raised after verdict as a matter of right. Eastman v. Waisman, 94 N.H. 253; Perreault v. Lyons, 98 N.H. 317. The defendant is entitled however, to raise any questions of law apparent upon the face of findings and rulings made. Freeman v. Pacific Mills, 84 N.H. 383; Eastman v. Waisman, supra, 254.
The finding that the defendant acquired no rights in the accounts by virtue of what transpired between him and his mother during her lifetime was clearly permissible upon the evidence. A conclusion that a debt from Mrs. Colburn to the defendant arose out of assistance which he had furnished her was not compelled (see Blake v. Lord, 90 N.H. 42, 44; Decatur v. Cooper, 85 N.H. 250), nor was the evidence such as to require a finding that a completed gift of a present interest in the accounts resulted from Mrs. Colburn's delivery of the account books to the defendant. New Hampshire Say. Bank v. McMullen, 88 N.H. 123, 128. The defendant testified: "she wanted to give me money but I wouldn't take it"; "she gave it to me to take the whole thing if I wanted it, but I never touched it"; "I owned the safety deposit box anyway, and I kept [the books] in there, and she could go anytime she wanted and get them"; "she was still using that money." His own testimony was sufficient to overcome any presumption of acceptance of a gift tendered by his mother. Similarly there was sufficient evidence to warrant the finding that the proceeds of the sale of the stock and substantially all of the proceeds from the house were deposited in the accounts in question. The findings may not be successfully attacked for want of evidence to support them.
Mrs. Colburn's interest in the proceeds from the sale of the house and stock was that of a life tenant with power of disposal, an estate well recognized in this jurisdiction. In re Gile Estate, 95 N.H. 270; Belford v. Olson, 94 N.H. 278, 280, and cases cited. Her power of disposal was not unlimited, but in accordance with the will "if [the] income should be insufficient to properly care for her" permitted her to use "so much of the principal as . . . necessary for her proper care." As the defendant correctly points out the will also provided that she should be "the sole judge of what is right and proper for her suitable care and maintenance," but this provision does little more than reaffirm the previously expressed limitation restricting her use of principal to use for her "proper," "suitable care." Since it is found that no effective transfer was made to the defendant, the extent to which Mrs. Colburn's power of disposal was subject to a limitation of reasonable necessity for her support (see Orr v. Moses, 94 N.H. 309, 312, and cases cited), need not be determined. Any assets of her husband's estate which she had not used for her suitable care and maintenance remained assets of his estate. Shapleigh v. Shapleigh, 69 N.H. 577, 581. At her death title to such property was controlled by the provision of his will giving to the plaintiff and the defendant in equal shares "what remains of my property." It follows that there was no error in the ruling that the funds on deposit at Mrs. Colburn's death, already found to have derived from the sale of the house and the stock formerly belonging to James E. Colburn, were a part of the residue of his estate.
The defendant strongly urges that the proceeds from the sale of the stock stand upon a different footing from those derived from the real estate, and were freed of any limitation contained in the James Colburn will because "the stock belonged to Mrs. Colburn in fee." This contention is based upon testimony by the deputy register of probate that in 1929 a license was granted for the transfer of the various shares of stock of the James E. Colburn estate "to Mabel E. Colburn in her own right." The probate decree was not in evidence. As appears from findings and rulings previously quoted the Trial Court rejected the defendant's claim that the proceeds of the stock ceased to be a part of the James E. Colburn estate, although it granted his request for a finding that the stock was "transferred to the said Mabel E. Colburn pursuant to license of the Probate Court in fee from the estate of the said James E. Colburn."
In this no error appears. Although the fact does not appear, the stock may have been transferred to Mrs. Colburn's name without indication of the limited nature of her estate. Her right to dividends during her lifetime was absolute, and she was entitled to the use of the principal "for her proper care." if "necessary." There is no evidence that the probate decree for the issue of a license to the administrator was an adjudication that full beneficial interest in the stock should immediately vest in Mrs. Colburn along with the legal title. While she was entitled to use the proceeds of the stock in accordance with the will, she did not do so. "The fact that the old certificates were surrendered and new ones taken out in [her] name does not, as a matter of law, establish [her] ownership of the property." Weston v. Society, 77 N.H. 576, 580. Consequently there was no error in the finding or ruling that she acquired no interest in the proceeds of the stock which she did not find necessary to use for her care and maintenance. Neither conversion of the stock into cash nor deposit of the cash in the savings account constituted use or disposal for her support, and what remained at her death undisposed of passed under her husband's will.
The defendant's claim that interest aggregating $137.55 credited upon the Nashua Trust Company account during Mrs. Colburn's lifetime became a part of her estate cannot be sustained. The income was bequeathed to her "for and during the term of her natural life." "After [her] death . . . what remain[ed]" of her husband's property was left by him to his two children. "However clear the intention that the life tenant may have all the income if he needs it, or may use or alienate it if he chooses to do so, slight evidence may be enough to prove an intention that so much of it as he neither spends nor conveys shall be considered a part of the property of which it is the unexpended increase." Kimball v. Bible Society, 65 N.H. 139, 151. The verdict by which the plaintiff was found to be entitled to one-half of this interest was not in error.
One other exception taken by the defendant merits consideration. It is argued that the finding that the defendant "exercised no control over the books" is patently contrary to the evidence. the finding were to be considered apart from its context this would be so; but it appears in the same sentence with the finding that the defendant kept the books in his safe deposit box, and is followed by the finding that he permitted his mother to have free access to the box for the purpose of using the money. Taken as a whole the findings indicate that the defendant exercised no such control as would establish acceptance of an interest in the deposits which they evidenced. The implication is that he "exercised no control" as a joint owner of the accounts.
Judgment on the verdict.
All concurred.