Murray v. Cannon

Parties incompetent to Testify under the Act of 1868, ch. 116— Imperfect Gift. A bill was filed by an administratrix to obtain possession of a book of deposit, and certain sums of money credited therein, alleged to have been deposited in a Savings’ Bank by her intestate in his life time, to which as his administratrix she claimed to be entitled. The bill charged that a daughter of the intestate together with her husband had been active parties in withholding the book of deposit and resisting the payment by the bank to the complainant, of the money deposited. That they had been as thus charged, the answers and proof in the case abundantly established. The bill prayed that they might be required to answer. Helo : That these defendants were not nominalparties merely, and were therefore incompetent to testify under the Act of 1868, ch. 116. An account was opened in a Savings’ Bank to the credit of “James Cannon, subject to'his order, or tp the order of Mary E. Cannon,” his daughter; • and money from time to time was thus deposited. Upon the death of James Cannon, Mary E. Cannon claimed that her father, in his life time, had given her the book of deposit with the money credited therein, to be held by her in trust for herself, and her brothers and sisters. The only mode in which money could be changed from one person’s account to another’s in the bank was “by a payment of the one account and a new deposit in another " account.” Upon a bill filed by the administratrix of James Cannon claiming the money in bank as belonging to his estate, it was Held : That the deceased had not parted with the legal dominion and control over the'money standing in .his name in the bank, because it was there subject to his order, or the order of his daughter; nor did the delivery of the book of deposit constitute a delivery of the money, and the complainant was therefore entitled to it as of the estate of her intestate.

Appeal from the Circuit Court of Baltimore City. The bill of complaint in this case filed by the appellee, charged that she was the widow of James Cannon, late of Baltimore city, who died intestate in the month of April, 1871, leaving the complainant, his widow, and five surviving children, viz: Florence, an infant daughter of the complainant, and four children by a former marriage, viz : Louisa J., the wife of Win. W. Kone, MaryFj., the widow of Oliver P. Murray, James Cannon and Susie Cannon, and a grandson, Louis Arnett; that on the 12th of May, 1871, letters of administration on the estate of the said intestate, were issued to the complainant by the Orphans’ Court of Baltimore city; that in the course of her administration she discovered that her intestate had deposited money in the Savings’ Bank of Baltimore, to the amount of about $4000, and that it was standing in his name and to his credit at the time of his death ; that in some way to the complainant unknown, the book of deposit had been taken possession of by William W. Kone and Louisa, his wife ; that the complainant had applied to the bank to pay her the money, but the bank had refused to pay it, unless she should produce the book of deposit; that Kone and wife had refused to give up the book; that thereupon, on the 14th of May, 1871, the complainant applied to the Orphans’ Court, by petition, for an order requiring Kone and wife to surrender to the complainant, as administratrix, the book of deposit which they had concealed and withheld ; that in their answer to said petition, filed 22nd of May, 1871, they stated that before the filing of said petition, they had delivered the book to Mary E.. Murray, and they denied that the money deposited in the bank belonged to the intestate’s estate, but averred that it had been given by the intestate in his life-time to Mary E. Murray, upon certain trusts ; that Mary E. Murray on the 20th of June, 1871, also answered the petition, and averred that Kone and wife had given her the book, and that the money deposited in the bank had been given to her by the intestate in his life-time upon certain trusts. The bill denied that Kone and wife had delivered the book to Mary E. Murray before the petition was filed, and averred that the money belonged to the estate of the said intestate. The bill also alleged that the Orphans’ Court dismissed the petition, holding that it had'not jurisdiction to determine the question of title to the said property ; that the bank still refused to pay the money to the complainant on the claim of Kone arid wife, and Mary E. Murray, that they, together with the persons by them mentioned in their answers aforesaid, were the only persons entitled to the same, and the bank could not safely assume to decide upon said inequitable claim. The bill prayed for a decree requiring that the book of deposit should be delivered and the money in the Savings’ Bank paid to the complainant, as administratrix of the said intestate. William W. Kone and Louisa, his wife, Mary E. Murray and the Savings’ Bank of Baltimore were required to answer. The separate answers of Kone and wife, and Mary E. Murray averred that the book of deposit was given to the latter by her father before his marriage with the complainant, and that at the time the account was opened to the credit of “James Cannon, subject to his order, or to the order of Mary E. Cannon;” that there was some money already entered in the book at the time it was given to Mary E. Murray, and that the intestate gave her that money and such money as might thereafter be credited in the book, in trust, for herself and her brothers and sisters equally ; that other money was given to Mary E. Cannon (who intermarried with Oliver P. Murray,) by the intestate, to be deposited in the bank, and that she continued in possession of the book from the time she got it, until her marriage and removal to Portsmouth, Virginia, in the spring of 1862, when, at the request of the intestate, she left the book with Mrs. Kone, the intestate saying, that it would be more convenient to leave it with Mrs. Kone, so that she might deposit such other money as he might give; that while it was in Mrs. Kone’s possession, tlie intestate, from time to time gave her other sums of money for Mrs. Murray, and told her to deposit them in hank and have them credited in the hook lor her. It was alleged by Mrs. Kone, that she retained possession of the hook delivered to her, until she returned it to Mrs. Murray, after the death of the intestate. It was also alleged that the intestate never at any time asked for the return of the book, or claimed the money. Mrs. Murray claimed that she was lawfully entitled to the book of deposit, and to Itave the money therein credited, amounting, with the credits of interest to April, 1871, to the sum of $3809.54, for the uses and purposes stated by the donor. The Savings’ Bank answered, alleging that it had no knowledge of the facts stated in the bill, except as to the deposit with the bank in the name of James Cannon, and in reference to that, averred that an account stood on their books thus: “James Cannon, subject to his order, or to the order of his daughter, Mary E. Cannon,” and that on the 1st of April, 1874, the balance to the credit of that account was $4688.78. The hank assented to such decree as the Court might pass. A commission was issued to take testimony. Among others, Kone and wile were examined as witnesses, on behalf of the defendants, having previously executed a release and assignment of all their interest in the money to Mrs. Murray. The complainant excepted to their testimony. They filed a petition setting forth the release and assignment, and asking that the bill be dismissed as to them; and an agreement of counsel was filed by which the admissibility of their testimony was to be decided as if it had been given after the action of the Court on their petition. The Court took no action on the petition, hut held that Kone and his wife were incompetent to testify for their co-defendants, not being “nominal parties merely” under the Acts of 1864 and 1868. The Court, (PnoKNEy, J.,) thereupon passed a decree requiring the Savings’ Bank of Baltimore, on the receipt of the proper vouchers, to pay to the complainant as administratrix, the money in bank, to the credit of her intestate. From this decree the defendant Mary E. Murray, appealed.