Alger v. North End Savings Bank , 146 Mass. 418 ( 1888 )

Devens, J.

This is an action of contract for one thousand dollars deposited by George C. Trumbull, the plaintiff’s testator, with the defendant bank, Achsie J. Wood intervening as claimant under the Pub. Sts. c. 116, § 81. The judge, before whom the cause was tried without a jury, found for the claimant, and has reported it for the determination of this court, on the question whether the evidence is sufficient in law to sustain this finding.

This sum of money, which was Trumbull’s own, was deposited by him in the defendant bank, of which he was treasurer, in his own name, as trustee for Achsie J. Wood. The question presented is whether there was evidence of a perfected gift of the sum thus deposited in his lifetime to Mrs. Wood, or whether it continued under the control and in the possession of Trumbull until his death, and was only intended to become the property of Mrs. Wood in the event that he should see fit to leave it undisturbed at the time of his death. If the deposit was of the latter character, it would be an attempt to make a testamentary disposition of the sum without observing the forms of law, and the administrator would be entitled to the possession of it. Nutt v. Morse, 142 Mass. 1.

The Pub. Sts. c. 116, § 82, provide that, when a deposit is made by one in trust for another, and when no other notice of the terms of the trust has been given in writing, the deposit may, in the event of the death of the trustee, be paid to the person for whom such deposit is made. But this is intended solely for the protection of the bank, and the rights of those who deem themselves entitled to the deposit are not thereby affected as between themselves.

The difficulty in this case, as in similar cases where deposits have been made by one in his own name as trustee for another, is rather in the application of the law to the facts, than in the principles which should govern. The very large number of deposits in the savings banks of this Commonwealth, and the convenience in many instances of adopting this form of deposit, have caused it often to be carefully considered.

While, if Trumbull retained the control, over this fund until his death, intending that no title to or interest in it should pass until that time, there would have been no perfected gift, it is also true, that, if he deposited the money in the bank intending it to be at the time a gift to Mrs. Wood, although he himself kept the deposit-book, and informed her of it, and she assented to it, this would be equivalent to a delivery and an acceptance of a chattel on delivery, and the gift would have been perfected. Scott v. Berkshire County Savings Bank, 140 Mass. 157.

In Gerrish v. New Bedford Institution for Savings, 128 Mass. 159, it is said that it is enough for the purpose of making a party trustee for the benefit of another “ if it be unequivocally declared in writing, or orally if the property be personal, that it is held in trust for the person named. When the trust is thus created, it is effectual to transfer the beneficial interest, and operates as a gift perfected by delivery.” It was there held that evidence which the claimants offered of declarations which the testator, the alleged trustee, made to them at different times in language which fairly implied that he intended to give to them an immediate equitable title in the principal fund, reserving to himself only the income for life, should have been admitted.

But a mere declaration of trust by the owner, not communicated to the donee and assented to by him, or a mere deposit of the fund in his own name as trustee, or a deposit in the name of another, will not be of themselves alone sufficient to prove a complete gift or voluntary trust. Sherman v. New Bedford Savings Bank, 138 Mass. 581, and cases cited.

The case at bar, although the' evidence as to the ownership of the deposit is fully stated, does not require us to decide whether we should have found as did the presiding judge who has reported the case, but only whether there was sufficient evidence, as matter of law, to sustain his finding.

If all the declarations were of the character of that first testified to by the claimant, this would be difficult. She testified that the compensation she was receiving in the way of weekly wages was nominal, and that it was always understood that some provision would be made for her in addition. In November or December of 1883, Trumbull recited to her the provisions of his will, by which he had bequeathed to her twenty-five shares in the Vermont and Massachusetts Railroad, adding, “ And if I live until the first day of January there will be a thousand dollars in the North End Savings Bank in trust for you, and if I die and leave that as I intend to, you will call for the book and it will be yours.” The money was not then in the bank, and this conversation only indicates an intention to put it there, and to leave it there so that the claimant might receive it at his death. It is of the same character as the conversations to which the claimant testifies when she states, “ Mr. Trumbull told me a good many times that he would make a provision for me.” But the statement made by the claimant as to what was said by Trumbull shortly before his death, and after the deposit of the one thousand dollars was actually made, is of a different character. He explained to her (referring to a deposit made by another, and for the benefit of another person than the claimant) that money put in trust in a savings bank for a person would go to that person, saying, “ That is on the same principle as the one thousand dollars that I put in for you in the North End Savings Bank ”; he said, “ The law is strict in that way, and that money is yours.” The claimant in her testimony repeated this declaration with some slight change of phraseology, but each time as an explicit statement by Trumbull that the money then in the North End Savings Bank was hers. Thus she states, “ He told me just before he died that it was there, and it was mine.” To the inquiry, on cross-examination,- “ He said . . . that he had put a thousand dollars in for you, and if he left it there, if he died as he expected he should,” the claimant, interrupting, said, “ No, sir; he did n’t at all; he said it was there; the last time he spoke of it he said it was there, and it was mine.”

These statements, if believed, establish a perfected gift of the one thousand dollars assented to by the claimant. They are made when the money is actually in the bank, and they assure the claimant without qualification that it is hers. There is no reason, as matter of law, why the court might not have placed confidence in them. We cannot review the evidence or the argument by which it was sought to show that they were not in fact worthy of credence. Heywood v. Stiles, 124 Mass. 275.

Judgment on the finding for the claimant.