Coolidge v. Knight , 194 Mass. 546 ( 1907 )

Hammond, J.

Under the stipulation of the parties, the sole question left for our consideration is whether Thomas Livermore, to whom the seven savings bank accounts in controversy originally belonged, made during his lifetime a perfected gift of them, or any of them, to the respective beneficiaries. The case was heard, upon, evidence largely oral, by a single justice of this court.

All of the bank books were kept by Livermore while he lived, and after his decease they were found in his trunk among his other effects. He treated the accounts as belonging to him. As to his intention the justice found that even “ where the alleged beneficiary was notified, there was no intention on the part of Thomas Livermore to hold the several books in trust for himself for life and subject thereto in trust for the several beneficiaries. On, the contrary I find as a fact that it was his intention to keep the full control of the several books in question during his life, and to give the books to the several beneficiaries on his death. In other words, that the case does not come within the class of cases of which Gerrish v. New Bedford Institution for Savings, 128 Mass. 159, would be one if the evidence there held to be admissible was believed, but to the class of cases of which Nutt v. Morse, 142 Mass. 1, is an example.” This finding must stand unless it appears to be clearly wrong. But it is not necessary to invoke in this case that principle of practice. We have carefully examined the evidence and are satisfied that the finding was clearly right.

The interest on these various accounts was added every six months to the principal by the respective banks, and it appeared that for years after the alleged gifts and up to the time of his death, Livermore in every account drew out, on the day on which the interest was thus added, or within a very few days thereafter, a sum equal to the amount of the interest. He went to the banks and drew out this interest in person, except the last year before his death, in which year he from time to time gave an order to Mrs. Farnham with whom he boarded, and she went to the bank and drew the money for him. As a rule he receipted for the money in his own individual name, and with one or two exceptions signed the orders in the same way. With the exception of the account in the Boston Five Cents Savings Bank it is not shown that he ever receipted in any other way. In one or two instances Mrs. Farnliam added the word “ trustee ” or its abbreviation “ Tr.” to his name upon an order, but that was at the suggestion of the bank after her arrival there, and it does not appear that he ever knew it; and in one or two cases, at least in one instance, the word “ Tr.” appears after his name, but in a different ink and a handwriting differing from that of the body of,the signature. In a word, he kept the books and in all ways seems to have treated the accounts as if they belonged to him.

It is argued,, however, in behalf of the accountant that although he made a perfect gift of the principal, still it was with the reservation of the income during his life. But one of the troubles with that view of the transactions is that in the case of several of the accounts the written assignment was of the interest as well as the principal, and in none is there expressed any such reservation. The assignment of the account in the Warren Institution for Savings, for instance, is of the deposit book “ together with all moneys due thereon, both principal and interest.” The order to the Newton Savings Bank is to pay to Mrs. Adams “ all moneys that have been or may be deposited, together with the interest that may become due on ” the account. While it is true that Mrs. Bond-Foote testified that at the time Livermore exhibited the books in the presence of herself, her mother and her sister Emma, he said that he should take the interest as long as he lived but when he was gone the books should respectively belong to them, still, in view of the whole circumstances disclosed we must regard the whole language uttered by him on that occasion as indicating not an intention on his part to make a then present gift of the principal so as to pass it irrevocably out of his hands, but as indicating what he supposed would happen after his title to the principal had ceased by his death. And in calling a book “ Maria’s book,” we understand that he meant not that the book then actually belonged to her, but simply that upon his death he intended that it should go to her. In all this we find no then present gift of any part of the account represented by the books.

Livérmóre apparently was not unacquainted with the manner in which a gift of a book account could be properly made. When he had concluded to give an account to Mrs. Farnham he proceeded in a proper way and made an effectual gift. It is unprofitable to rehearse the evidence further.

In view of the facts that the books were kept in his possession, that he treated the accounts as his own and under his control until his death, that he knew how to make a perfected gift when his object was to pass the title from him in his lifetime (as shown in his gift to Mrs. Farnham), and of the other material circumstances, we are of opinion that the finding of the single justice was correct, and that it was not Livermore’s intention to pass the title either to the principal or the interest of any of these accounts during his lifetime. There was therefore no perfected gift. The title remained in him at the time of his death. Nutt v. Morse, 142 Mass. 1. Bailey v. New Bedford Institution for Savings, 192 Mass. 564, and cases there cited.

Decree affirmed.