Hayden v. Hayden , 142 Mass. 448 ( 1886 )

C. Allen, J.

The plaintiff relies on the vote of the Trustees of the Smith Charities passed on June 24, 1884, as creating an obligation to the principal defendant, of which he might avail himself. The question arises out of the somewhat peculiar method adopted by the Trustees of administering their trust, in respect to the loan to the defendant. Instead of lending the money for a fixed term, not over five years, during which the beneficiary would know that he could have the use of it, the Trustees took from him a note payable in five years, or on demand, at their own option; and instead of making a loan, of which, during its continuance, the beneficiary could make a beneficial use, the whole amount of the money lent was held in the savings bank as collateral security for its repayment, yielding a lower rate of interest than the beneficiary was required to pay to the Trustees. Thus, the loan, instead of being a benefit to him, would be ae burden, unless at its maturity the Trustees should see fit to cancel and give up his note. If the note had been made payable at the end of five years, without the further provision making it payable on demand at the option of the Trustees, it is quite plain that they would have no authority to cancel or give it up before the end of the five years. This is fully covered by the decision in Smith Charities v. Northampton, 10 Allen, 498. In that case, the Trustees sought the instructions of this court as to their duty and power in respect to loans made by them under the same clause of the will which authorized a loan to the present defendant, in cases where the borrowers died before the expiration of the terms for which the loans were made, and it was then assumed, both by the Trustees in seeking instructions, and by the court in expounding the will, that in the execution of their trust the Trustees would, as a matter of course, make loans only for fixed terms. It is not necessary for us, in the present ease, to make a final determination of the question whether the Trustees had any authority to make a loan upon the terms contained in the note taken from the defendant, or whether, assuming that they had such authority, they could cancel and give up the note before the expiration of the five years, without at least first making a formal demand for its payment; because even if, merely for the sake of the argument, such power were to be conceded, we are of opinion that, upon the facts stated, the Trustees by their vote of June 24 did not intend to make a present gift of the money to the defendant, and that, if they did so intend, they did not do enough to make a completed gift to him. Construed in the light of all the facts disclosed, and especially in the light of their power and duty under the will, as heretofore explained to them by this court, their vote does not import an intention to surrender the note at once, or before the expiration of the five years, so as to give to the defendant a present absolute right to its surrender, and to a transfer to himself of the money held by the savings bank. There is nothing but the mere language of the vote itself which goes to showr such intention. That language does not necessarily lead to that inference. It is consistent with an intention to give up the note at the end of the five years, which term would expire three days later; and the circumstances disclosed lead us to suppose that such was, in point of fact, their intention.

But whatever their intention at the time, the mere vote would not, of itself alone, amount to a gift of the money to the defendant. There was no previous understanding that such a vote should be passed. The defendant knew nothing of it. Nothing was done in pursuance of it, prior to the commencement of the plaintiff’s action. The plaintiff appears to have obtained early information, in some way not disclosed, of the vote, and to have taken prompt action, with a view to availing herself of it. The vote, however, was merely a voluntary act, to which the defendant was in no way a party or privy, and no surrender or transfer was made to him or to any person in his behalf. In order to give to him a present absolute right to the money, there must have been, not only an intention to make a present gift of it to him, but enough must have been done in execution of such intention to make the gift complete. Scott v. Berkshire County Savings Bank, 140 Mass. 157, 166. Sherman v. New Bedford Savings Bank, 138 Mass. 581. Ide v. Pierce, 134 Mass. 260. Gerrish v. New Bedford Institution for Savings, 128 Mass. 159. Cummings v. Bramhall, 120 Mass. 552, 564. Shurtleff v. Francis, 118 Mass. 154. Clark v. Clark, 108 Mass. 522. Brabrook v. Boston Five Cents Savings Bank, 104 Mass. 228.

Exceptions overruled.