Summary
In Nixon v. Cooper, 97 N.H. 327, 329, it was pointed out that reserved cases or bills of exception are "merely instruments by which exceptions previously taken may be presented to this court."
Summary of this case from Pike v. HartfordOpinion
No. 4094.
Decided April 1, 1952.
Exceptions are not properly taken by reserved case or bill of exceptions. The finding of the Trial Court that the interests of the co-owners in certain funds withdrawn from a joint savings account by one of them with the permission of the other, and deposited with the court as bail with a receipt therefor running to the co-owners, became those of tenants in common was justified on all the evidence. In such case, evidence of any conversation one co-owner had with the clerk of court relative to the use to be made of the funds could not affect the nature of his title thereto as against the other co-owner and was properly excluded.
BILL IN EQUITY, to establish a resulting or constructive trust of certain funds in the hands of the defendant administrator of the estate of the plaintiff's deceased wife. The intervenors, who defend by leave of court, are three of five children of the decedent by a former marriage.
On April 16, 1948, the decedent withdrew the funds in question from a joint savings account opened by her and the plaintiff on May 28, 1945. When the account was opened both parties executed a writing which provided in part that "each depositor hereby declares his intention to make, at the time of each deposit therein, a present gift to his co-depositor, of the right to appropriate, to the co-depositor's use, all or any part of the deposit, all while retaining the same right for himself." The withdrawal made by the decedent in 1948 was in the sum of $2,000 and was made with the knowledge and permission of the plaintiff for the purpose of furnishing bail for the decedent's son (one of the intervenors) in a pending civil contempt proceeding. The withdrawal was by check payable to the decedent alone. The money was thereafter deposited with the clerk of the Superior Court and a receipt issued to the plaintiff and his wife, both of whom signed a joint recognizance for the son's appearance. Following the death of the plaintiff's wife, on petition of the plaintiff and the defendant administrator, an order was entered pursuant to which the clerk paid them the sum on deposit by check payable to both. This check is in the possession of the defendant administrator.
Hearing by the Court (Goodnow, C.J.). The administrator was ordered to pay $1,000 to the plaintiff and to retain the other $1,000 to be accounted for as an asset of the estate. The Court found that upon withdrawal by the decedent the fund "lost its character as a joint fund and became a fund owned in common"; that the deposit with the clerk was made by the plaintiff and his wife; and that upon the wife's death her one-half passed to her estate and the other half belonged to the plaintiff. The Court ruled that "there was no resulting trust in favor of Jonathan Nixon as to the One Thousand Dollars belonging to Elsie Nixon while this fund was on deposit in Superior Court."
In the course of the trial the plaintiff excepted to certain rulings with respect to evidence. Upon the filing of the findings, rulings and decree, the plaintiff "excepted thereto by the filing of a proposed reserved case." All questions of law presented by the plaintiff's exceptions were reserved and transferred by the Presiding Justice.
Paul B. Urion (by brief and orally), for the plaintiff.
Cooper, Hall Cooper for the defendant administrator, filed no brief.
Hughes Burns and Donald R. Bryant (Mr. Bryant orally), for the intervenors.
No exceptions to the decree or to the findings or rulings of the Superior Court are before us. While the reserved case recites that exception was taken "by the filing of a proposed reserved case," the exception thus taken is not set forth and no "proposed reserved case" is contained in the record. Exceptions are not properly taken by reserved case or bill of exceptions. These are merely instruments by which exceptions previously taken may be presented to this court; and a general exception to a decree even when taken in the proper way is of doubtful avail in this court. See Carter v. Savings Bank, 70 N.H. 456; Hancock v. Shea, 78 N.H. 590; Cook v. Sargent, 78 N.H. 25; Eastman v. Waisman, 94 N.H. 253.
The findings and rulings of the Trial Court find support in the evidence. The testimony that the decedent sought and obtained permission from the plaintiff to make the withdrawal from the joint account might have been taken as evidence that the plaintiff's interest in the withdrawal was to remain unchanged and that the withdrawal was not made in the exercise of the right conferred upon the decedent by the written declaration filed with the bank. Yet such a finding was not compelled. The withdrawal was not made by the parties jointly, but in the name of the decedent alone, to whom the money was paid. It was deposited with the clerk of court in exchange for a receipt running to both parties which disclosed no intention to create or preserve a joint tenancy. This was evidence which warranted a finding that their interests became those of tenants in common. See Burns v. Nolette, 83 N.H. 489, 495; Pierce v. Baker, 58 N.H. 531.
The plaintiff's exception to the exclusion of his testimony that "at the time [he] signed the bond" there was no "agreement with respect to the return of that money to [the] joint account" cannot be held to present prejudicial error. There is no occasion to determine the admissibility of evidence of an agreement that it should be so returned, since the plaintiff's testimony was that there was no such agreement. Conversation which he may have had with the clerk of court with respect to the use to be made of the funds could not have affected the nature of his title as against the decedent, and was properly excluded. If the principle that a trust results by operation of law in favor of one who furnishes consideration for a purchase (Smith v. Pratt, 95 N.H. 337; Hatch v. Rideout, 95 N.H. 431) had any application, the decree entered gave adequate effect to it by decreeing to the plaintiff an interest coextensive with what his contribution was found to be.
Exceptions overruled.
All concurred.