Anniston National Bank v. Howell , 116 Ala. 375 ( 1896 )

HEAD, J.

The weight of the evidence in this caséis decidedly to the effect, that the two sums of money deposited in the bank by B. F. Howell, in his wife’s name, and for the recovery of 'which the wife now sues the bank, were, at the times of such deposits, the money of B. F. Howell, and that he used his wife’s name as a depositor for the purpose of shielding the money from the claims of his creditors. The sums were deposited in her name, and a pass book delivered to B. F. Howell, made out in the usual form, with the account stated in her name, as a depositor, except that it had written on the face of the account the words, “Special deposit.” The evidence shows that afterwards, and before the death of B. F. Howell, this pass book was in the possession of Mrs. Howell, the plaintiff. These facts, standing alone, would show an absolute gift of the money by the husband to 'the wife ; and without more, the husband would not thereafter have been authorized to check the money out of the bank, without some further lawful authorization proceeding from Mrs. Howell.

But, the defendant proposed to prove by its president, Mooring,_ that “it was B. F. Howell’s instructions to the bank at the times he made the deposits, for the bank to honor either his or Mrs. Howell’s check on this money.” On objection by the plaintiff, the court refused to allow this proof to be made. This ruling was vitally erroneous. The husband in his lifetime, and before this suit was brought, checked out all of this money, except a small sum, which the plaintiff herself afterwards checked out, and the question at issue is as to the authority of Howell to check upon the account. If the deposits were made by him, of his own funds, as we find they were, and if at the time of such deposits, and as a part thereof, he instructed the bank to honor either his own or his wife’s checks on the same, most clearly there was no such completed transfer of the money from the absolute ownership and dominion of Howell to that of his wife, as would prevent the bank from carrying out the instructions coupled with the making of the deposits. This evidence ought to have been allowed, and the judgment must be reversed on account of its rejection.

In the view we take of the evidence, as presented by the bill of exceptions, we do not think the other exceptions reserved on the trial, are of any material importance, and we do not specially consider them.

For the error mentioned the judgment is reversed and the cause remanded.

Reversed and remanded.