Millman v. Streeter , 66 R.I. 341 ( 1941 )

The reason for my dissent lies in the fact that I take an entirely different view of the evidence from that of the majority of the court. The evidence shows, in my opinion, a joint ownership in the contents of the safe deposit box in the respondent, Bertha E. Streeter, and Dr. Sheffield Smith, with the right of survivorship. For convenience, Bertha E. Streeter will hereinafter be referred to as the respondent. In reaching this conclusion I have given the form of the agreement for the rental of the safe deposit box great weight, especially in view of the fact that there is no testimony which directly contradicts the statements contained therein and little, if any, evidence of an indirect nature by way of inference. Indeed, such evidence, from which it is sought to draw inferences contrary to the form of the agreement, is, when properly considered, only remotely, if at all, of a contrary nature. The majority opinion strives to make such evidence appear more formidable in apparent contradiction of the agreement than it really is when it is carefully read and analyzed in connection with the whole record.

On the other hand, the testimony in support of the agreement is, in my opinion, substantial and convincing. The box was hired in the names of Mrs. Streeter and Dr. Smith, but the receipt therefor was made out to her, and the two keys for the box were given to her. It further appears that she kept these keys constantly in her possession, except on one occasion when she allowed Dr. Smith to take one key and go to the box to get some money to purchase tickets for a trip to the West which he and the respondent were about to take. He afterwards returned the key to her. The uncontradicted testimony as to this incident is that Dr. Smith asked the respondent to go to the box; that she replied that she was too busy at the house to do so at the time; and that she told Dr. Smith to go himself and gave him the key. Although the box was hired at the suggestion of Dr. Smith and only his money was placed therein, respondent testified that his name was included in the agreement for her convenience. The evidence of the above incident of Dr. Smith requesting her to go to the box, and of her sending him instead is corroborative of such testimony. If the testimony of respondent had been the other way, namely, that Dr. Smith had included her name in the agreement forhis convenience, it would have tended to rebut a gift from him to her in his lifetime.

Respondent testified both in the probate court and in the superior court that Dr. Smith wanted her to have the money. Something has been made of a variance in such testimony on this point in those courts. From her testimony in the probate court it would appear that respondent claimed exclusive ownership of the money by way of an absolute gift from Dr. Smith; whereas in the superior court her testimony leans toward the idea of a gift to her of a joint interest in the contents of the box. In my opinion this is not important. The most that can be said of her testimony in this respect is that it is not consistent as to the extent of the gift which is claimed. The significant thing to note is that neither her testimony in the probate court nor in the superior court supports the claim of the complainant that there was no gift. On the contrary, on both occasions respondent's testimony is definitely to the effect that Dr. Smith did give her this money, and the statements contained in the rental agreement and subscribed to by Dr. Smith are consistent with such testimony.

The majority, in order to buttress a doubt in their minds that the instant agreement is akin to a joint bank account and governed by the same principles, rather labor the point that the agreement contemplated a gift of the contents of the box only if the respondent survived Dr. Smith, and not a gift in praesenti. To reach such a result they give, what seems to me, a strained construction of the plain language of the agreement. By the very terms of the agreement either had access to the box and, of course, could remove the contents. But when the death of one party occurred, the joint ownership was broken and it was in such an event that the agreement quite naturally went on to say that the survivor should have "exclusive right of access" to remove the contents. (italics mine) The emphasis here is on the wordexclusive. The agreement sought to make clear beyond question that the joint ownership, existing in the lifetime of both parties to the agreement, carried with it the right of survivorship, and that only the survivor should have access to the box and the right to remove its contents.

I agree with the majority that the burden is upon the respondent in this course to prove the gift to her from Dr. Smith, and I have no fault to find with the numerous decisions of this court which have clearly laid down the principle that he who alleges a gift must prove it. But I cannot agree with the majority that the cases of Stiness v. Brennan, 51 R.I. 284 and Old Colony Cooperative Bank v. Burger, 63 R.I. 223, 7 A.2d .725 are apt citations for the purpose of elucidating the application of that principle to the facts of the instant cause. In each of those cases there was no joint account. The claimant merely had in her possession the bankbook of the alleged donor at the date of the alleged donor's death and was seeking to prove a gift to her of the bankbook. Under such circumstances the claimant of the gift in each of those cases carried a heavy burden and was without the very great assistance which each would have derived had the account been in the alleged donor's name and the name of the claimant jointly, and been payable to either or the survivor. It is this added circumstance in the instant cause by way of the form of the safe deposit box agreement which, in my opinion, makes the respondent's claim so strong and which it seems to me the trial justice entirely overlooked.

I do not hold that the mere possession of the bankbook — in the instant cause the keys to the safe deposit box — is controlling on the question of donative intent, but I do say it is a fact of great importance in the case of a joint account. When this court stated in Marston v. Industrial Trust Co.,107 A. 88, 89, (R.I.): "Delivery of the bank book is not a prerequisite to the creating and passing of a joint title in a savings deposit", it was enunciating a principle that favored the form of the deposit subsisting at the death of the alleged donor as strong evidence of his intention to make a gift to the survivor rather than the opposite. That this is so is amply demonstrated by the following sentence from the same paragraph of the opinion in that case wherein the above-quoted sentence appears: "When it is clear that the intention of the parties is to create a joint account so that both of the parties have an equal right to draw on the funds, it is immaterial which holds the book."

In that case the survivor who was claiming a gift of the account never had possession of the book in the lifetime of the alleged donor and did not have it after her death, it being in her safe deposit vault at her bank, yet this court sustained the superior court's finding that the account belonged to the claimant in accordance with the form of the deposit. In my opinion, that case is one that could be cited in support of the claimant's contention in the instant cause. Indeed, a reading of it might well make one wonder why the evidence there was found sufficient to prove a gift to one who never had an opportunity to exercise dominion over the account in the lifetime of the alleged donor and why the evidence here, wherein the claimant had exclusive possession of the keys to the box, is found insufficient.

On the view which I take of the instant agreement, it is essentially the same as that of a bank deposit made by one in the name of himself and another jointly, and payable to either or the survivor; and the same principles should be applied here as have been applied in determining who is the owner of such an account upon the death of the alleged donor.

These principles have been established by a series of cases decided by this court over a long period of years. The most important of such cases for our present purpose are Raferty v.Reilly, 41 R.I. 47; Industrial Trust Co. v. Scanlon,26 R.I. 228; Whitehead v. Smith, 19 R.I. 135. In each of those cases the facts were very like the instant cause in that the bankbook was given by the donor to the donee of the joint interest when the donee's name was added thereto by the donor or a short time thereafter, was continuously thereafter in the possession of the donee, and was in his possession at and after the donor's death. Under such facts this court has held that the intention of the alleged donor governed; that such intention may appear in the statement of the depositor, or it may be shown by his acts and the attendant circumstances; and that the form of the deposit was consistent with an intention to make a gift of an interest in the deposit. In each of the cited cases the court found a gift in the survivor on evidence no stronger than, and in some respects not as strong as, the evidence in the instant cause. Indeed, the instant cause impresses me as one where the evidence not only does not tend to contradict the intent of the donor as shown by the form of the agreement for the safe deposit box, but strongly confirms it.

I, therefore, find it impossible, consistently with our decided cases, to support the finding of the trial justice on the evidence before this court. On the contrary, it appears to me that there is practically no evidence here that negatives theprima facie evidence of the donor's intention, as shown by the form of the deposit, and as corroborated by the testimony of respondent concerning Dr. Smith's statements and conduct in relation to the hiring of the safe deposit box and the money which he had placed therein. But even if it be considered that there was some such negative evidence, indirectly by way of inference, it nevertheless is too remote and inconsequential. Clearly it falls far short of even equalling the weight of the respondent's evidence in support of the alleged gift. On the whole record, as I view it, the trial justice's finding is clearly wrong since, in my opinion, it is decidedly contrary to the great weight of the evidence.