Kirschenbauer v. Ludovico ( 1967 )

It is undisputed that Joseph Ludovico, father of five children by a prior marriage, and his second wife, Stella, mother of two children by a prior marriage, established on October 8, 1959, mainly from Joseph’s funds, a savings account for each of the seven children in the sum of $2,500 and each in the name of “Joseph Ludovico or Stella Ludovico, payable to either trustee or the survivor in trust for [name of child].” All of the accounts were intact with accumulated interest on the date of Joseph’s death, August 27, 1960. After Joseph’s burial Stella withdrew all of the money without notice to the named beneficiaries. The decree declared Stella a trustee and ordered her to pay to Mrs. Kirschenbauer the sum on deposit for her at his death. The decree is supported by the judge’s findings which are not plainly wrong on the reported evidence. He found in essence that Joseph and Stella intended to create a trust for the benefit of each child, the sums on deposit for Joseph’s children to be paid to them by Stella on his death, and that Joseph so informed his children. See O’Hara v. O’Hara, 291 Mass. 75, 77-78; Greeley v. Flynn, 310 Mass. 23, 27-28; Aronian v. Asadoorian, 315 Mass. 274, 277, and cases cited; Mikshis v. Palionis, 345 Mass. 316, 318-319. The decree should be modified to dismiss the petition as against the respondent bank.

Decree as modified affirmed.