
    CHARLES H. WALKLING v. HENRY F. WALKLING et al.
    [No. 32,
    January Term, 1932.]
    
      Decided March 4th, 1932.
    
    The cause was argued 'before Bond, O. J., PIattison, Henee, Adkins, OIfeutt, Digges, Sloan, JJ.
    
      Simon SBverberg, with whom was Grace B. Gerber Silver-berg on the brief, for the appellant.
    
      James E. Boylan, Jr., with whom was Gerald W. Hill on the brief, for the appellees.
   Urner, J.,

delivered the opinion of the Court.

It was decided by the lower court in this case that the defendant received from his mother, Wilhelmina Walkling, in her life time, certain funds with the understanding that they were to be distributed after her death among her children and the children of her two deceased sons, and, in view of the defendant’s failure to make such a division, he was required by the decree to pay the sums therein specified to- the respective plaintiffs as the intended distributees. The payments directed by the decree totaled $1,183.32. This was $500 less than the aggregate amount of deposits withdrawn by Wilhelmina Walkling from several banks in Westminster on November 15th, 1926., and transferred to the defendant, largely in the form of indorsed checks, but partly in cash, and deposited by him in other banks to his own credit. The defendant was not charged in the decree with the duty of distributing the whole of the amount thus received from his mother, a portion of it being treated as the share to which he was entitled. ^ The withdrawal and transfer of the deposits by the original owner occurred just before she became an inmate of a home for the aged in Baltimore. A witness, who, with the defendant’s daughter, accompanied his mother to Westminster on November 15th, 1926, explained the reason for the financial change then accomplished as follows: “In order to get into this home she was supposed to give all the money she had. She did not want to do- that. I don’t know who objected to it, whether she did or the children or who, but she decided $1,000 was enough. So she had to get that money out of her name and she went to Westminster to- get it out of her account and closed the accounts and p-ut it in someone else’s name so the home knew" nothing about it, and I knew that before I went.”

One of Mrs. Walkling’s bank accounts was closed by her check to the General German Home for the Aged, bearing the same date as the other withdrawal checks.. In the course of his testimony, the defendant answered in the affirmative an inquiry as to- whether he knew, before the money was withdrawn by his mother from her bank accounts, that it was to be done in order tbat tbe home for tbe aged would receive only $1,000.

There was testimony offered by tbe plaintiffs, and admitted over objection, as to declarations by Mrs. Walkling tbat sbe bad placed ber money in tbe bands of tbe defendant witb tbe understanding tbat be would distribute it among ber children and grandchildren after ber death. To tbe extent to which this testimony referred to statements made when tbe defendant was not present, we must disregard it, in view of prior decisions of this court. Duvall v. Hambleton & Co., 98 Md. 12, 55 A. 431; Martin v. Munroe, 121 Md. 679, 89 A. 319;. Dixon v. Dixon, 123 Md. 44, 90 A. 846; Jones v. Dugan, 124 Md. 346, 92 A. 775; Moran v. O’Brien, 156 Md. 221, 144 A. 257; Quillen v. Bell, 158 Md. 677, 149 A. 462. But there is evidence of a declaration by tbe defendant himself which is inconsistent witb bis claim tbat be received tbe money in question as a gift. Two of tbe defendant’s sisters testified tbat they met him in their mother’s room at tbe home for tbe aged, and brought up tbe subject of tbe money which sbe bad placed in bis charge, and in which they were claiming an eventual interest. According to tbe testimony of one of tbe sisters, tbe defendant said: “You can’t wait until mother dies to get it, can you V Tbe other sister’s version of this statement was: “You can’t wait until your mother is dead.” Both testified tbat be further said in effect tbat be was gping to spend tbe money. It was denied by tbe defendant tbat be bad such a conversation witb bis sisters. Tbe tenor of his-testimony in-other respects, however, is not sufficiently persuasive to induce tbe court to refuse credit to' their statements-because of bis denial. In referring to tbe delivery to him of' tbe money withdrawn by bis mother from ber bank accounts, tbe defendant made tbe significant remark: “Then sbe told me to take it to tbe bank and I should put it in my name.” Tbe circumstances strongly tend to disprove bis assertion tbat be was intended to> foe tbe beneficiary of an absolute gift of bis mother’s entire bank deposits in excess of tbe amount reserved for payment to tbe home for fhe aged. Those deposits, were in ten separate joint accounts, entered in tbe names of Wilhelmina Walkling in trust for herself and her various children and grandchildren, respectively, subject to the order of either, the balance at the death of either to belong to the survivor. There is no suggestion in the record of any motive for altering these provisions for her numerous descendants, except to avoid the supposed necessity of assigning to the home for the aged all of the deposits, in addition to the sum which she deemed an adequate consideration for her admission. It was evidently not designed that such an expedient should prevent the ultimate division of the funds among her issue with approximate equality, and should result in a gross discrimination in the defendant’s favor. The conclusion of the court below was justified by the evidence, and its decree will not be disturbed.

Decree affirmed, with costs.  