Nutt v. Morse , 142 Mass. 1 ( 1886 )

Morton, C. J.

The funds in this case are claimed by a brother, two sisters, and a nephew of the deceased, upon the ground that they were given to them severally by him during his lifetime. The claims of each stand upon the same grounds substantially, there being no material difference in the evidence as to each alleged gift. Upon the facts found by the master, it is clear that there was no perfected gift to either of the claimants. The deceased deposited the money in his own name as trustee of each claimant, and told the claimant that he had done so. The books were in the possession of Edgar S. Hayes, one of the claimants, but he held them, as he did other papers of the deceased, merely as his agent or servant.

Calvin Morse retained the entire dominion and control of the funds, both principal and interest, during his life, and the facts show conclusively that he intended that no title to or interest in the funds should pass to the several claimants until after his death. The transaction was intended to be in the nature of a testamentary disposition, and was an attempted evasion of the statute of wills. Sherman v. New Bedford Savings Bank, 138 Mass. 581, and cases cited.

It follows that the funds remained the property of the depositor at the time of his death, and belong to the administrator, to be divided according to the statute of distributions.

Decree accordingly.