Buckingham's Appeal From Probate

G, who had several thousand dollars standing to her credit in a savings hank, requested the teller of the bank to transfer $1,500 to each of three nieces whom she named, one of whom was with her, which he did, charging her account with $4,500, and opening an account with each of the nieces for $1,500, and preparing a bank book for each. C requested that the hank books should be so made that the money could not be drawn out during her life, and the teller endorsed on each of them — “ Only Mrs. O has power to draw.” C and the niece who was present wrote their names in a signature book kept by the bank, the teller adding to G’s name the word “Trustee.” The names of the others were afterwards written by them on slips and sent to the bank, the teller writing C’s name with the word trustee added. Chad before the transfer declared her intention to make the gifts. After the transfer she took the new books and kept them during her life. It was found that she so held them only as trustee for the nieces, and that the nieces accepted the gifts in her lifetime. Held to be a valid gift inter vivos. B, one of the residuary legatees under the will of O, appealed from a probate decree allowing the final account of the executor, in which he had not charged himself with money which he claimed had been given to these nieces by G in her lifetime. B had previously procured her daughter, also one of the residuary legatees, to bring a bill in equity against the executor and the three nieces, to compel the latter to pay to the executor the money so received and the executor to receive and account for it, and had employed counsel to. manage the suit, and upon the facts proved the bill had been dismissed. Held that though B was not a party on the record, yet that she was an actual party to that suit, and that the decree was admissible against her upon the trial of the probate appeal. The decree did not show the facts on which it was based, but the opinion of the court stated them. Held that the opinion was inadmissible as not being in itself evidence. It might be shown by parol evidence what was in issue in the former case. Where inadmissible evidence has been received by the court below, unless it clearly appears that no harm could have been done, the safer rule is to grant a new trial. The legal title to all personal property of a decedent vests in his legal representative, who holds it as trustee for all parties interested in it.

Appeal from a probate decree accepting and approving the administration account of the executor of the will of Irene Clark, deceased ; taken to the Superior Court in New Haven County. The case was heard before Robinson, J., by whom the following finding of facts was made. Irene M. Clark died in April, 1887, leaving a will, dated November 11th, 1881, which was duly probated, by which she gave all the residue of her personal property to the appellant and five others, to be equally divided among them. On the 15th of October, 1884, she had on deposit in the Connecticut Savings Bank of New Haven $5,871. A few days prior to that date she told one Georgiana Hubbell that she was going to give to each of her nieces, Mary Bell Clark, Emma Clark, and Ellen C. Platt, a sum of money, and requested her to go with her to New Haven for the purpose. This she was unable to do, and Mrs. Clark then requested the said Ellen C. Platt to go with her. On the 15th of October, 1884, Mrs. Clark and the said Ellen went together to the savings bank at New Haven, and Mrs. Clark told the teller to write up her deposit book, and desired that $1,500 should be transferred from her account to each one of the three nieces named. This was done, and three new accounts were opened in their names. Each was credited with $1,500, and Mrs. Clark’s account was reduced $4,500. Three new pass-books were made out in the names of the three new depositors, and were given to Mrs. Clark. She told the teller, in the presence and hearing of said Ellen, that she wanted to have the bank books so fixed, or the entries so made, that the money should belong to the three nieces named by .her, but so that they could not draw it out and spend it during her life. The teller therefore entered upon each of the pass-books — “ Only Mrs. Irene Clark has power to draw.” The ledger accounts of these deposits were in the names of the three nieces. Mrs. Clark declared to Mrs. Platt while at the bank that she had given her $1,500, and that she had given the same amount, each, to Emma Clark and Mary Bell Clark. The bank had a book called a signature book, in which was entered the signature of each depositor, with other facts relating to the depositor, for purposes of identification. When the bank books were given to Mrs. Clark, Mrs. Platt wrote her name on this signature book opposite the number of the book in her name, and Mrs. Clark also signed under the name of Mrs. Platt, and the two names were included in a bracket. The teller added to the name of Mrs. Clark the word “ Trustee.” The words “ Mrs. Clark only to draw,” were also written in the margin by the teller. Bank slips were also handed to Mrs. Clark by the teller, and she was desired to obtain the signatures of Emma Clark and Mary B. Clark upon those slips, and to have them write upon the slips certain other required facts, and return the same to the bank, to be pasted in the signature book. On the same day, upon her return to Milford, Mrs. Clark showed these three bank books to the husband of Mrs. Ellen C. Platt, and said to him that she had given the girls $1,500 each, and that the girls should share equally in the will, as if she had not given them the money; she also showed him the two slips, and instructed him to have Emma Clark and Mary B. Clark informed that these slips must be signed and returned to the bank. Emma Clark called at Mrs. Clark’s house, and was told by her that she had given each of her said nieces fl,500 ; she was shown the pass-book issued to herself, and those issued to the other two nieces, and was given the slip to fill out, sign and return to the bank. At the same time Mrs. Clark gave to Emma Clark’s husband the slip for Mary B. Clark, with instructions to deliver it to her to sign and return to the bank. The slip delivered to Emma Clark and the one sent to Mary B. Clark were filled out and signed by them, and returned to the bank, where the signatures were pasted in the signature book in their appropriate places. After these signatures were pasted in the book the teller wrote under each signature the words “ Mrs. Irene Clark, Trustee,” and on the margin, the words “ Mrs. Clark only to draw.” Afterwards, and within a few days, Mrs. Clark and Mary B. Clark met, and Mrs. Clark informed her that she had made her a gift of $1,500, and informed her of the fact of her having taken out a bank book in her name for that sum, and also named the other two nieces as having received from her a like gift. Mrs. Clark also inquired of her whether she had received her paper, referring to the slip, and whether she had signed it and returned it to the bank. Mrs. Clark after her return from New Haven declared to a number of her personal friends and neighbors that she had given to these nieces $1,500 apiece, and to two of these persons stated in addition that notwithstanding these gifts her nieces were to share equally with the others under her will. The bank books were retained by Mrs. Clark in her possession. Mrs. Clark, at the time she made the transfers at the bank from her own name to the names of the nieces, intended to give to each of them the sum deposited in her name, and intended to retain custody and control over the bank book and deposit only as trustee for them. The teller at the bank was honestly attempting in making the various entries on the deposit books, and in the signature book, to carry out this intention of Mrs. Clark thus expressed to him. The court finds that the donees accepted the gifts of the sums of money so deposited. The bank books remained in the possession of Mrs. Clark until her death, with the exception of a short period before her death, when they were delivered to Mrs. Ellen C. Platt, with four other bank books belonging to Mrs. Clark absolutely, she remarking at the time — Nellie, I want you to take these bank books and keep them until I call for them: possession is half.” They were retained by her for a few days, when they were asked for by Mrs. Clark and returned to her. Shortly after October 15th, 1884, Mrs. Platt informed the appellant that Mrs. Clark had given the three nieces $1,500 each, and on December 14th, 1884, the appellant wrote a letter to Mrs. Clark, saying she had been informed of the gifts, and asked her to give her some money that was deposited in the Bridgeport Savings Bank. This letter Mrs. Clark gave to Mrs. Platt and told her to keep it, as it might be of value to her. To the admission of this letter the appellant objected as irrelevant and incompetent. The court overruled the objection, and the appellant duly excepted. Each of the three nieces has drawn $500 on her book. Upon the hearing at the trial the appellee claimed that, upon the question of the title to the deposits in the three bank books, the decree in the case of Miller v. Clark and others, hereinafter referred to, was, if admissible in evidence, conclusive, and would estop the appellant from offering evidence upon the point in question, and requested the court to allow him to open the case and offer the judgment; but the court declined to permit it, and the appellant offered evidence in regard to the title of the bank deposits, and both parties were fully heard in reference thereto ; and upon the evidence so received the above finding in relation to the ownership of the deposits is made. The appellant claimed that the facts showed a gift of a testamentary nature to take effect at the death of Mrs. Clark, and that her control over the deposits and retention of the books during her life rendered it such a testamentary gift, and therefore void because not in testamentary form ; but the court overruled this claim, and affirmed the judgment of the court below. On the 3d of January, 1887, Martha A. Miller, of Iowa, a daughter of the appellant, and one of the residuary legatees with her of the personal property under the will, brought a bill in equity in the United States Circuit Court for the District of Connecticut against the said Emma Clark, Mary Bell Clark, Ellen C. Platt, and the executor, the present appellee, asking that they be compelled to turn over to the executor said bank books, and that the executor be ordered to receive said books and the money deposited in the Connecticut Savings Bank, and to include said sum and accrued interest as assets of the estate of Mrs. Clark, and amend his inventory so as to include the same. The executor offered in evidence a certified copy of the record in the case, including the opinion of Judge Shipman-, and the printed proofs taken before an examiner, on which the decree was based, supported by oral testimony that these printed proofs were those so taken and the only proofs used at the hearing. The printed proofs were not certified, but certification was waived by the appellant, and it was admitted that the proofs were correctly printed as taken.* The appellant excepted to the whole evidence as irrelevant, and res inter alios acta, and also to the copies as not showing on what proof the decree was based, and as showing that the executor disclaimed any title and interest in the bank books, and did not claim to represent the appellant in the matter ; and objected also to so much of them as contained Judge Shipman’s opinion, as being no part of the record and mere hearsay, and irrelevant and incompetent to explain the grounds of the decree. The court overruled all these objections and admitted the evidence, and held that the opinion of Judge Shipman: might be read to show the grounds of the decree. Said action was brought at the request of the appellant and for her benefit, and the appellant’s attorneys, Mr. McMahon and Mr. Buckingham, appeared and had the exclusive charge of the case during the preparation and trial thereof, except that the bill in the case was originally drafted by Mrs. Miller’s counsel in Iowa. This bill was sent to the appellant’s attorney, Mr. McMahon, who made such changes in it as he deemed best, and had the action commenced. Mr. Baldwin, the appellant’s attorney in this appeal from probate, was not concerned in the Miller case. Mr. McMahon advised with the appellant touching the case. The executor’s charges consisted of time and money spent, principally in attending to lawsuits which were brought against the estate. A small part only accrued upon the Miller case. The appellant was a very active promoter of this litigation, and either directly or indirectly was- responsible for the existence of most of it. The charges of the executor were reasonable arid fair charges. At. the hearing before the probate court the executor appeared with Touchers for each item of his account, and offered to show them to the appellant and her attorney; but the appellant waived the production, and made no objection to the account, except by filing certain written objections. All the items of the account were true and just charges against the estate, and all, except the executor’s charges for services, were admitted to be correct and just. The appellant claimed, and asked the court to hold, that the form of the account was not proper, in that it was in gross, without proper explanation of its nature; but the court overruled the objection. The court affirmed the decree of the probate court, and the appellant appealed to this court.