Splaine v. Morrissey , 282 Mass. 217 ( 1933 )

Field, J.

This bill in equity was brought against Ellen Morrissey as the administratrix of the estate of her deceased husband, Michael Morrissey, and also against her in her individual capacity to determine the amount due to the plaintiff from her as administratrix, to adjudge fraudulent a conveyance by the deceased to her individually of certain bank deposits, and to order her as an individual to pay the plaintiff’s claim out of said deposits or the proceeds thereof. A decree was entered adjudging that Ellen Morrissey as administratrix of her husband’s estate is indebted to the plaintiff in the sum of $1,620 and interest from the date of the filing of the bill, and that execution is^ue therefor, and dismissing the bill as against Ellen Morrissey individually. The plaintiff appealed. There are findings of fact by the trial judge, but the evidence is not reported.

Michael Morrissey died October 23, 1929. On the preceding July 5, and before, he was indebted to the plaintiff in the sum of $1,620 for room, board and care of his mother — also the mother of the plaintiff. On this date the deceased, being in good health, went with his wife, Ellen Morrissey, to two savings banks and transferred deposits therein, aggregating $3,971.68 in amount, from his name “to the joint name of himself and his wife with the right of survivorship.” At that time the deceased had no other property except his clothing. The judge found “that this transfer was made without consideration and was a gift to his wife; that the gift was not made with any intent to hinder, delay or defraud creditors and that this transfer did not make Michael insolvent.”

On these findings the transfer of the savings bank deposits was not a fraudulent conveyance within the provisions of G. L. (Ter. Ed.) c. 109A, dealing with such conveyances, but it would have been a fraudulent conveyance if the deceased was rendered insolvent thereby. (§4) The plaintiff contends that the judge’s finding that the transfer did not make the deceased insolvent was a wrong conclusion from the other facts found. But this finding does not purport to be based solely upon other findings and is not incompatible with anything therein. See Coghlin v. White, 273 Mass. 53, 55.

By statutory definition in G. L. (Ter. Ed.) c. 109A, a “person is insolvent within the meaning of this chapter when the present fair salable value of his assets is less than the amount that will be required to pay his probable liability on Ms existing debts as they become absoMte and matured” (§ 2 [1]), and the “assets” of a debtor as here used “means property not exempt from liability for Ms debts.” (§ 1)

We interpret the findings of the judge to mean that the deceased made a present gift to his wife, not of the deposits themselves but of such interests therein as are implied from the terms of deposit upon which they were held by the banks. Such a gift could be effected in accordance with the principle applied in the case of Chippendale v. North Adams Savings Bank, 222 Mass. 499, and the cases following it, by the banks entering into new contracts of deposit with the deceased and Ms wife, in substitution for the prior contracts of deposit with the deceased, if the deceased, as the judge may have found, intended that result. This is true even if, as does not appear, the savings bank books were never delivered to the wife. Perry v. Leveroni, 252 Mass. 390, 393. Holyoke National. Bank v. Bailey, 273 Mass. 551, 554-555. See also Battles v. Millbury Savings Bank, 250 Mass. 180, 187-188; Rockefeller v. Davenport, 277 Mass. 105; Barnes v. Chandler, 277 Mass. 395. And the incapacity of a married woman to contract with her husband (see G. L. [Ter. Ed.] c. 209, § 2; Boland v. McKowen, 189 Mass. 563, 565), would not stand in the way of such a gift, for no contract between the deceased and Ms wife would be required. See Brown v. Brown, 174 Mass. 197.

The interests of the deceased and his wife in each savings bank deposit, implied from the terms of deposit, obviously constituted some kind of joint ownersMp with right of survivorsMp.

Joint ownership of real or personal property with right of survivorship created by a transfer to husband and wife is presumably a tenancy by entirety, though an ordinary joint tenancy or some other form of joint ownership by them could be created if the intention to do so clearly appeared. Hoag v. Hoag, 213 Mass. 50, 53-54. Woodard v. Woodard, 216 Mass. 1, 2. Ames v. Chandler, 265 Mass. 428, 431-432. The language of the contracts of deposit, as described in the findings, is apt for the creation of a tenancy by entirety. Each deposit was transferred by the deceased “to the joint name of himself and his wife with the right of survivorship.” These words taken in their natural sense describe a tenancy in a deposit such that, as in the case of a tenancy by entirety, nothing could be drawn from the deposit “except upon the joint order or receipt of the two during their joint lives.” Marble v. Treasurer & Receiver General, 245 Mass. 504, 509. Nothing in the findings compels the conclusion that the parties did not intend to create a tenancy by entirety. If husband and wife took by contracts with the banks the transaction is not open to the objection that a husband cannot convey to himself and his wife an estate by entirety. Brown v. Brown, 174 Mass. 197. Compare G. L. (Ter. Ed.) c. 209, § 3; Ames v. Chandler, 265 Mass. 428, 430-431.

The interests of the deceased in the deposits, if he was a tenant by entirety, were liable for his debts. Raptes v. Pappas, 259 Mass. 37. See also Phelps v. Simons, 159 Mass. 415; Licker v. Gluskin, 265 Mass. 403,406-407. The interest of the deceased in each deposit was the entire income thereof during his life with the possibility of absolute title thereto if he should survive, while his wife’s interest was merely the possibility of absolute title if she survived. Licker v. Gluskin, 265 Mass. 403, 406. See also Phelps v. Simons, 159 Mass. 415, 418; Raptes v. Pappas, 259 Mass. 37, 39. If the “fair salable value” of such interests of the deceased at the time they were created by the transfer was not less than the amount of his indebtedness, the transfer would not render him insolvent. G. L. (Ter. Ed.) c. 109A, § 2. Though these interests became of little value to him by reason of his death less than four months after the transfer, leaving his wife surviving, we cannot say on the basis of facts found and matters of common knowledge that the judge would have been plainly wrong in finding that at the time of the transfer they were'worth not less than the amount of his indebtedness.

The findings of the judge, however, do not purport to state the precise terms of the contracts of deposit (compare Hayward, v. Cain, 110 Mass. 273, 279), and, though naturally implying the creation of a tenancy by entirety, are not incompatible with a finding that an ordinary joint tenancy was created. If such a tenancy was created the deceased, at any time during the joint fives of himself and his wife, could have severed the tenancy and withdrawn his share of each deposit and his wife could have withdrawn only her share thereof. Marble v. Treasurer & Receiver General, 245 Mass. 504, 509. Compare Bernatavicius v. Bernatavicius, 259 Mass. 486. His interests in such deposits were liable for his debts. See G. L. (Ter. Ed.) c. 167, § 14; c. 214, § 3 (7); c. 223, §§ 102105; c. 236, § 1; Hayden v. Binney, 7 Gray, 416; Ames v. Chandler, 265 Mass. 428, 433; R. H. White Co. v. Lees, 267 Mass. 112; Hills v. Webber, 17 T. L. R. 513. And they could have been found to have had a value at the time of the transfer not less than the amount of his indebtedness.

Even if the contracts with the banks created such a joint ownership of the deposits with right of survivorship as was considered in Marble v. Treasurer & Receiver General, 245 Mass. 504, (see also Johnson v. Nourse, 258 Mass. 417,419-420), where, during the joint fives of the husband and wife, either of them could have withdrawn the whole or any part of these deposits on his or her individual receipt and disposed of the money on his or her individual account, pages 508, 509, the transfer did not render the deceased insolvent. At any time during the joint fives of the deceased and his wife the deposits, if not previously withdrawn, could have been attached in a suit against the deceased and, since the wife could show no superior title thereto, could have been held for his indebtedness. R. H. White Co. v. Lees, 267 Mass. 112. See Samuels v. Charles E. Fogg Co. 258 Mass. 402, 406. It does not appear that the whole or any part of the deposits was withdrawn during his lifetime.

We are not required to consider whether the transfer in the circumstances in which it was made would have warranted the inference of actual intent on the part of the deceased to hinder, delay or defraud his creditors. G. L. (Ter. Ed.) c. 109A, § 7. The judge found expressly that there was no such intent and the plaintiff properly does not contend that this finding was plainly wrong.

Decree affirmed.