Robinson v. Ring , 1881 Me. LEXIS 54 ( 1881 )

Appleton, C. J.

This is an appeal from a decree of the judge of probate ordering that the defendant account for and distribute among the heirs of Francis B. King the sum of thirteen hundred dollars, belonging to that estate but not included in the inventory of the same.

Notwithstanding there has been a settlement of the final account of an administrator, still upon ascertaining that there are outstanding debts due the estate and collectible, the probate court may open the administration and order further proceedings. " Even after final accounting and distributing, an executor still continues to be a trustee.” Paff v. Kinney, 1 Bradf. 1.

The question presented is whether there are such debts due the estate, -which have not been accounted for and which may be collected.

It seems that Francis B. Eing, having deposited in the Kich-mond savings bank the sum of $2000, the bank refused to receive a further deposit in his name ; that he then made a deposit of three hundred dollars in the name of his brother, Stillman IT. Eing; that he continued depositing in his name until the sum amounted to thirteen hundred dollars ; that during all this time he retained the deposit book in his possession; and that at the time of his death it was found among his papers. There is no evidence of any delivery of the same to the brother. At one time when Stillman IT. King and his brother were looking over the papers of the deceased, he had this book in his hands and asked, bis brother if he should keep it, to which the reply was, "No, not now, I will keep it.”

No trust was declared when the deposits were made and there is no satisfactory evidence of any subsequent declaration of trust. Stillman H. Ring no where testifies that the deceased ever gave the deposit book to him.

This is manifestly not a gift causa mortis, for there is no evidence of any act or declaration under the pressure of immediate or impending death or of any delivery Grymes v. Hone, 49 N. Y. 17 ; Case v. Dennison, 9 R. I. 88.

To constitute a valid gift inter vivos the giver must part with all present and future dominion over the property given. He cannot give it and at the same time retain the ownership of it. There must be a delivery to the donee. Carleton v. Lovejoy, 54 Maine, 446. Here was no delivery as such. There is no act shown to have been done to pass the title. Brabrook v. Boston Five Cents Savings Bank, 104 Mass. 228. In Hill v. Stevenson, 63 Maine, 367 adclivery of a savings bankbook with intent to give the donee the deposits represented thereby, was held a good delivery to constitute a complete gift of such deposits, but here there is the absence of proof of any delivery or intent to give. There must be an intention to give and this must be carried into effect by an actual • delivery. Taylor v. Fire Department of New York, 1 Edw. Ch. 294.

In all the cases cited there was a delivery or a declaration that the deposits were in trust as in Minor v. Rogers, 40 Conn. 513, when shortly after the time of making the deposits, the dejiositor stated that the deposits were for the boy in whose name they were made by her, as trustee, and the court found it ivas a complete gift at the time of the deposit. In Kerrigan v. Rautigan, 43 Conn. 17, the'deposit was made by the depositor as guardian for the niece, whose name the deposit was made and at the same time the declaration was made that it was for her. In Davis v. Ney, 125 Mass. 590, there was a delivery and assignment which the court held a valid gift. In Blasdell v. Locke, 52 N. H. 238, the deposit when made was intended as a gift and subsequently the donee was informed of such intention, and the court enforced the trust upon which the deposit was made. In Tillinghast v. Wheaton, 8 R. I. 536, the gift was of one in extremis, and was accompanied with a delivery of the saving's bank pass book.

’Without going more fully into an examination of the authorities, the evidence fails to satisfy us that there was any intention to give, any delivery to, or any trust created in favor of, Stillman H. Iiing.

Decree affirmed.

Waltos, Barrows, DaNKOrth, Peters and BymoNDS, JJ., concurred.