McMahon v. Lawler , 190 Mass. 343 ( 1906 )

Loring, J.

[After the foregoing statement of the case.] If we give full credence to the fact testified to by the two nieces esactly as they put it, the decree of the single justice is right. What they testified to was an admission that the deposit in question belonged to the mother of those two nieces. The legal title to the deposit was confessedly in the intestate. If the deposit belonged to the sister of the intestate (the mother- of the two nieces) it was bcause a perfected trust in the deposit had been created in favor of the sister and mother, by way of gift.

As matter of evidence it is ordinarily hard in such a case as that now before us to overcome the fact that the depositor who has deposited his own money in his own name in trust for another has retained the deposit book in his possession, but in this case, if full credence is given to the statement of the witnesses, it was overcome as in Scrivens v. North Easton Savings Bank, 166 Mass. 255, Eastman v. Woronoco Savings Bank, 136 Mass. 208, Gerrish v. New Bedford Institution for Savings, 128 Mass. 15

In this case the single justice saw the witnesses on the stand and was thereby enabled to decide what credence should be given to their testimony. We see no reason for differing from the conclusion arrived at by him. Regester's Sons Co. v. Reed, 185 Mass. 226.

Decree affirmed.