Gale v. Drake, ex'R., 51 N.H. 78 (1871) - Opinion

Gale v. Drake, Ex’r.

A bequest of “ all my accounts ” does not j>ass a deposit in a savings bank; but a bequest of “all my personal property of whatever kind, except my notes, bonds, and accounts ” — held, to include such a deposit.

Assujipsit, by Franklin Gale against Almon F. Drake, Ex’r, to recover $347.52, wliicb the plaintiff claimed as legatee by the will of Israel N. Gale, the defendant’s testator. Said Israel N. Gale, by will dated December 11, 1868, made the following bequests: — “ Second: I give and bequeath unto my sister, Lucina Drake, wfife of Almon F. Drake, of Newton, all my personal property of whatever kind, except my notes, bonds, and accounts. Third: I give and bequeath unto my brother, Franklin Gale, of Kingston, all my personal property, including notes and bonds, &c., that I have not hereto disposed of, after the payment of my just debts and funeral expenses,” &o.

The testator died in the fall of 1869. His will was proved in the probate court, and the defendant appointed executor October 13, 1869; April 19, 1867, the deceased deposited in the Manchester Savings Dank $300, and took a deposit book therefor in the usual form. This sum, with the dividends, amounted to $347.52, December 16, 1869, which was on that day withdrawn from the bank by the defendant, and, as he testified, paid over by him to his wife. It was never paid to the plaintiff, and has not been accounted for in the administration of the estate; and the question, upon the construction of the will, was, whether the plaintiff, or the defendant’s wife, took this fund as legatees under the will. The defendant claimed, further, that said deposit book was given by the deceased to his wife; and whether that war, so or not was the main question of fact submitted to the court. The defendant was called as a witness by the plaintiff. He testified, among other things, that the deceased was at his house when he wrote the will, and stayed there two or three weeks after, and had been there loug enough before to make nearly six months in all; that he was in feeble health, and while there during that time received care and attention, as a sick man, from his wife; was boarded at the defendant’s expense, which the evidence tended to show was about $3 per week. “ When he left, he wanted to pay for his board. My wife told him he came there on a visit, and she did n’t want any pay — she would n’t set any price. He went into his room, and came out with his bank book, and handed it to my wife and told lier to keep that till be wanted it, or called for it. He never came back to our bouse, and never called for the book.” The deceased was at that time about sixty-three or sixty-four years of age. He had but a small amount of property besides this deposit, and it did not appear that he had made any provision for his support or care except what was afforded by his property.

After the time the will was made, the testator had four (N. H.) State bonds which he disposed of, about three months before his death, for a piece of land.

The testator kept account books, and had some small sums of money due him on account, some of which were collected by him in his lifetime, after making his will, and some by his executor. There was also a note of some $280, which was collected by the executor, and accounted for on settlement in the probate court.

Against the defendant’s objection, the wife of the plaintiff was admitted and sworn as a witness generally for the plaintiff.

She testified as follows: “ The defendant and his wife were at our house soon after the death of Israel N. Gale. I heard Mrs. Drake say, in the presence of the defendant, — He spoke of paying his board, and she told him he did n’t owe anything, and he said he thought lie should go to Deerfield and get in some of his debts to pay his board.’ She said she told him he did n’t owe her anything, because he had worked for her, carrying on her farm, before she married the defendant.” The above evidence was specially excepted to by the defendant.

The defendant testified that his wife did at one time owe the deceased $50 for work on her farm, but that she paid him before his death.

The above is, in substance, all the evidence bearing upon the question whether there was a valid gift of the book to the defendant’s wife; and upon this evidence the court found that the book and fund on deposit in the savings bank were the property of the deceased at the time of his death, so that their disposition must be governed by the construction of the will. The defendant moved to set aside said finding for error in admitting the above evidence.

Small, for the plaintiff.

I. It is plain, by the terms of the will, that the defendant’s wife did not take, but the plaintiff did take, all the testator’s notes, bonds, and accounts. If, therefore, the deposit in the savings bank, together with the bank book which the testator took and subsequently held, comes within the meaning of the term accounts as used in the will, the plaintiff' is entitled to this fund under the provisions of the will. The language employed by the will is quite expressive. It not only gives all the accounts of the testator to the plaintiff, but it expressly excludes them from the bequest of the other personal property. It gives all his personal property, excepting his bonds," notes, and accounts, to Mrs. Drake, and then gives all his personal property, including notes, bonds, &c., theretofore disposed of, to the plaintiff.

The court will be bound by the intention of the testator, gathered from the whole will. The will is quité general in its terms. The language of the bequest to Mrs. Drake is especially so. It gives nothing to her specifically. It excepts, from the bequest to her, certain classes of property, and gives these classes of property to the plaintiff. It is conceded that the money in question must fall within one of these two provisions of the will. No accounts are in terms given by the will to Mrs. Drake.

Accounts are, by the terms of the will, given to the plaintiff. The language used is of the broadest and most comprehensive kind, embracing everything that can fairly be denominated to be, or understood by the testator to be, an account. That this deposit, together with the book of deposit which the testator took and held, constituted an account, seems too clear for argument. In the first place, it was treated by the parties — the testator and the bank — as an account. It was entered on the books of the bank as an account, and was duplicated into the book which the testator held as an account. And the dividends are from time to time added thereto, making an account of several items.

That this deposit, thus entered and copied with the knowledge of the testator, and which was in the fornTof an account, must have been regarded by him as an account with the savings bank, just as it purported on its face to be, would seem entirely clear.

There is nothing, it is true, upon the face of the will that would seem to indicate that the testator liad in his mind any particular kind or class of accounts in dictating the will; but it is plain that he must have regarded this as an account, and the language he employed is appropriate to embrace all kinds of accounts.

This account belonged to a class of accounts well known, defined, and understood.

It was an account in bank which Bouvier (1 Bouvier’s Law Dictionary 49) defines to be,—

First“A fund which merchants, traders, and others have deposited in the common cash of some bank, to be drawn out by checks, from time to time, as the depositor may require.

Second: “ The statement of the amount deposited and drawn, which is kept in duplicate, one in the depositor’s bank book and the other in the books of the bank.”

Account is a term of extensive application. It is defined by Worcester*to signify (1) “A register of debts and credits, or of receipts and expenditures; a computation applied to sums of money.”

“ He keeps his account with the bank.” — Brande.

This account falls exactly within the ábove definitions.

This was such an account as would have supported an action upon an account stated. Filer v. Peebles, 8 N. H. 226; Ryan v. Rand, 26 N. H. 12; Knowles v. Michel, 13 East 249; Highmore v. Primrose, 5 M. & S. 65.

In the case of Perhins v. Mathes, 49 N. H. 107, the court held that under the term all my books and papers,” promissory notes, belonging to the testatrix and held by and payable to her person, were embraced in the word “ papers.”

I submit, then, that this was an account within the fair meaning of that term; that it was in the form of an account made so by the parties to it, and that what the testator regarded as an account must, for the purpose of interpreting this will, be held to be an account, regardless of the question as to the form in which it was kept.

II. The deposit book was not given to Mrs. Drake.

This book of deposit containing the account was but a chose in action, incapable of transfer without assignment; and there was no assignment. 2 Kent 438; Sanborn v. G-oodhue, 28 N. H. 56.

It was not a valid gift, inter vivos, for that goes into immediate and absolute effect, the donor parting not only with the possession, but with the dominion over the property. Craig v. Kittredge, 46 N. H. 58, and authorities there cited; also, Dole v. Lincoln, 31 Me. 422; Grover v„ Grover, 24 Pick. 261.

It was not a donatio causa mortis, for it was not delivered under any special apprehension of death. Craig v. Kittredge, ante, and authorities there cited.

The delivery was not intended as a gift, but merely for custody.

III. The evidence of plaintiff’s wife was properly received.

Her examination upon the point to which her testimony was offered could in no way lead to a violation of marital confidence, and the evidence itself was competent and material. Jackson v. Barron, 37 N. H. 500; Ryan v. Bollansbee, 47 N. H. 100.

Match, for the defendant.

I.The money deposited in the Manchester Savings Bank is not described by the words “ notes, bonds,” or “ accounts; ” consequently it is not included in the bequest to plaintiff.

1. The testator used the word “ accounts ” in the ordinary sense of debts due from individuals, such as are commonly charged upon the account book of the creditor.

Webster defines an “ account ” to be an entry in a book, or on paper, of things bought or sold, of payments, services, &c.

A deposit in a savings bank is not an account, any more than a note, bond, or judgment is an account. It is not so understood in common conversation. Adams v. Jones, 6 Jones Eq. (N. C.) 221 (U. S. Dig., vol. 25, p. 161, sec. 78); Hastings v. Hane, 6 Sim. 67.

2. The gift is of my “ accounts.” If in any sense the deposit was an account, it was an account of the bank and not of the testator.

3. The evidence shows that the defendant’s wife was the sister of the testator; that she had been kind to him in sickness; that he had attempted to provide for her by gift of this very bank deposit; and the case slidws the bequest to her is illusory, and that she will receive little or nothing, unless she may take the money in the bank.

See opinion of Foster, J., in Perkins v. Mathes, 49 N. H. 107, to the point that the will is to be so construed as to give a substantial value to the bequest.

II. The bank book had been given to Mrs. Drake by the testator in his lifetime.

1. The delivery was perfect.

2. The bank book was in the “ usual form,” and passed by delivery. There is nothing in the case to show that any formal assignment was necessary. See Perkins v. Mathes, cited above.

And a gift of a chose in action is perfect without written assignment. See Grrover v. Grover, 24 Pick. 261; Sessions v. Moseley, 4 Cush'. 87; Bates v. Kempton, 7 Gray 382; Borneman v. Sidlinger, 18 Me. 225; Goutant v. Schuyler, 1 Paige 316; 2 Kent’s Com. 447; Marston v. Marston, 21 N. H. 491, 496; Abbott v. Tenney, 18 N. H. 110; Sanborn v. Berry, Rockingham county, not reported.

3. The fact that the testator reserved the right to call for the book does not affect the validity of the gift. Stone v. PLackett, 12 Gray 232.

III. The wife of the plaintiff was improperly admitted as a witness. The action is against an executor who did not testify on his own motion. Gen. Stats.,ch. 209, secs. 16, 22; State v. Moulton,48 N. II. 485.

The conversation related by the witness took place in the presence of the husband.

And the conversation was inter alios, and ought not to prejudice the defendant.