Gale v. Drake , 51 N.H. 78 ( 1871 )

Foster, J.

The finding of the court that the deposit book and fund 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, was, in our opinion, a result fully-justified, if not demanded, by the evidence.

’Whether a delivery of the deposit book would be valid as a gift inter vivos, or donatio causa mortis, so as to convey an equitable title to the fund represented by it, which a court of law would recognize and enforce in the absence of any written assignment, order, or other form of transfer, is a question about which the authorities are conflicting, and which it is not necessary for us to decide in the present case. See 2 Kent’s Com. 447; Grover v. Grover, 24 Pick. 263; Sessions v. Moseley, 4 Cush. 87; Borneman v. Sidlinger, 18 Me. 225; Sanborn v. Goodhue, 28 N. H. 56; Flint v. Pattee, 33 N. H. 522; Jones v. Brown, 34 N. H. 445.

A donatio inter vivos is distinguished from a donatio causa mortis in this, that the former takes place when the giver is not in any immediate apprehension of death. 1 Bouv. Inst., n. 712 ; 1 Bouv. Dict. 502.

By such donation, completed by delivery, the property vests immediately and irrevocably in the donee, and the donor has no more right or control over it than any other person. Grover v. Grover, 24 Pick. 261.

Such a gift cannot be established by proof, merely, that the testator delivered tlie bank book to the defendant’s wife to keep “ till be wanted it or called for it.”

It was equally invalid as a donatio causa mortis for the same reason, and because it was not made in his last illness nor in contemplation of death. 1 Bouv. Dict. 502.

It remains to consider the question, To whom did the fund in the savings bank pass, by force of the testator’s will ? Did it go to his brother, the plaintiff, or to his sister, the wife of the defendant ?

In the construction of. a will, the main purpose should always be to give effect, if possible, to the intention of the testator, and to every part of the will. As we remarked in Perkins v. Mathes, 49 N. H. 107, “ when, as in the present case, a doubt is suggested as to the meaning expressed or the effect intended by the terms of a particular bequest, the clause of the will in question is not to be conclusively interpreted as an isolated and independent provision, but the intention is to be ascertained from a full view of everything contained within the four corners of the instrument.” We may also properly take into account all the circumstances surrounding the testator, such as the nature and amount of his property and its situation, as well as the situation and circumstances of his family and relatives. 1 Redf. Wills 426, note; Trustees v. Peaslee, 15 N. H. 319; Tilton v. Tilton, 32 N. H. 263; Goodhue v. Clark, 37 N. H. 525; Stokes v. Salomons, 9 Hare 75.

Let us examine the present case in the light of these principles of construction.

Apparently, the testator intended to give all his property to his brother and sister, the present litigants.

It does not appear that he entertained any special partiality for the one over the other.

During a recent illness while on a visit to his sister, he had been boarded at an expense to the defendant, her husband, of about §78. For her attention during that time the testator was properly grateful, and expressed a desire to recompense her either by paying for his board from the aváils of some debts due to him which lie proposed to collect for that purpose, or by a gift of the fund in the savings bank, provided he should not subsequently want it or call for it.

The defendant’s wife, at this time, was indebted to the testator for his labor on her farm some fifty dollars, but she paid him before his death.

His property, at the date of his will, consisted of this fund in the savings bank, amounting to about §350, four N. H. State bouds, amounting to about § , a note of about $280, and some small accounts against various- people, which were of little value in fact, though perhaps of less value than he supposed.

It is plain that, by the terms of the will, the defendant’s wife did not take the notes, bonds, or accounts — which are expressly excepted from the bequest to her, and expressly given to her brother, the plaintiff; that is, she did not take, and her brother did take, property amounting, in all, to a sum considerably larger than the fund in the savings bank.

The fact that about three months before his death the testator purchased a piece of land in exchange for the State bonds, is not a circumstance which can be regarded in the interpretation of the will executed before this exchange was made or contemplated.

If the fund in the bank, then, was intended for the testator’s sister, the legacy to her would still be less in amount and value than one half the testator’s property, and less than the value of the legacy to his brother.

This fund would pass to the sister under the bequest of personal property, unless it was intended to be given to the brother under the denomination of “ accounts.” Scorey v. Harrison, 17 Eng. L. & Eq. 46.

It is a very familiar rule of construction that the words of a will must receive their usual and ordinary popular signification, unless there is something in the context or the subject-matter clearly indicating a different use of the terms employed. 1 Redf. Wills 438; Perkins v. Mathes, before cited.

As an illustration of this rule, it has been held that a bequest of money must be taken in its ordinary signification ; but under that term stock in the public funds or private corporations will pass, where there was no money upon which the bequest could operate. Chapman v. Reynolds, 6 Jur. N. S. 440.

It cannot be pretended that a deposit in a savings bank would, in ordinary popular language and understanding, be denominated an account. It is not, like a “lank account” properly so called, which is defined to be “ a fund which merchants, traders, and others have deposited into the common cash of some bank, to be drawn out by checks, from time to time, as the owner or depositor may require.” 1 Bouv. Law Dic. 187. In this sense it might possibly be regarded and so termed an account, by a merchant or banker who is said to “ keep his account with the bank.” But the term “ accounts,” in the ordinary and popular understanding with which the testator must be understood to regard it, is that statement of mutual demands, in the nature of debt and credit, which arise out of contracts and dealings between parties, and the items of which are entered from time to time in.the books commonly known as account books.- 1 Bouv. Law Dic. 53, 55. “ An entry in a book, or on paper, of things bought or sold, of payments, services, &c., including the names of the parties to the transaction, date and price or value of the thing.” Webster’s Die.

An “ account,” within the meaning of the statute authorizing the appointment of auditors, relates to some matter of debt and credit between parties. Whitwell v. Willard, 1 Met. 216.

In the present case there were actual and proper accounts which the testator held against individuals, upon which the term used in the testator’s will could operate.

Another familiar rule in the interpretation of wills is, that the testator is to be considered as intending a benefit to the object of his gift. Wallace v. Wallace, 23 N. H. 149; Perkins v. Mathes, before cited.

What benefit will his sister derive from the will, if this fund in the bank, as well as all the testator’s notes, bonds, and accounts, are to be excluded from the legacy, ? It is not apparent that she will receive anything whatever, unless she may take the money in the bank.

We are therefore of the opinion that the defendant’s wife is entitled to the fund, and that this suit against the executor cannot be maintained.

The case, since it does not provide for a judgment, but only calls for our construction of the will,

Must he discharged.