Battles v. Millbury Savings Bank

250 Mass. 180 | Mass. | 1924

Pierce, J.

This is an action of contract to recover the amount of a deposit of $2,000, with accrued interest thereon, made in the defendant bank on the 11th day of October, 1920, in the name of Clara E. Sawyer or Angeline Battles. The defendant Marvin M. Taylor, executor of the will of Clara E. Sawyer, was duly made a party to the suit as an adverse claimant to the fund. The defendant Millbury Savings Bank is ready and willing to pay said fund to whomsoever the court shall decree it belongs.

The material and undisputed facts disclosed by the record are that the plaintiff, nearly eighty years old at the time of the trial in 1924, went to Millbury, Massachusetts, every summer to visit her half sister and the daughter of her half sister, Mrs. Sawyer; that they were very good friends; that Mrs. Sawyer died April 19,1921, aged about sixty-five years; that the plaintiff visited her half sister and Mrs. Sawyer in 1920 from June until October; that she intended to have gone home the week before she did but stayed over because Mrs. Sawyer wanted her to stay so that she (Mrs. Sawyer) could go to Worcester and see about depositing the money, and that she could not leave her mother alone; that Mrs. Sawyer went to Worcester one day and when she returned she had a conversation with the plaintiff and showed her a bank book; that the plaintiff did not take it in her hand but Mrs. Sawyer held it so that the plaintiff saw it and saw that the book was “ made out to our names and two thousand dollars and date.” A savings bank book No. 16420, issued by the Millbury Savings Bank, showing a deposit of $2,000 on October 11, 1920, in the name of “ Clara E. Sawyer or Angeline Battles ” was identified by the plaintiff as the savings bank book shown her by Mrs. Sawyer, and it was admitted in evidence. The record discloses that on Mrs. Sawyer’s return she said to the plaintiff “ she had been in and deposited some money on joint account of herself and . . . [Miss Battles] ” ; that the plaintiff replied, “You will probably outlive me,” and Mrs. Sawyer answered “ I am not sure. ... I don’t know about that.” In cross-examination the plaintiff, in reply to the question “ Wasn’t something said which caused you to say, * You will probably outlive me? ’ ” answered: “ When she deposited the money she said she made a joint account of it.” She further testified that she made the remark “ You will probably live longer than I,” because she “ knew . . . [Mrs. Sawyer] had deposited . . . [the money] in case she passed away before . . . [the plaintiff] did ” ; that she understood it had been deposited in case Mrs. Sawyer passed away before she (the plaintiff) did. The witness testified, in answer to the question, “ Didn’t she say something to that effect? That was all I said and all she said.” To the question, “ Didn’t she say something to the effect that she had deposited it so that you would have it if she passed away? ” the plaintiff answered: “ That was all. When she came in with the book she showed it to me and she said she had done that, that is what passed between us.” To the question, “ Didn’t she say something to the effect that she had done it so you would have the money if she passed away first? ” the plaintiff answered: “ She didn’t say anything, but I supposed she understood it.” To the question, “ You understood it? ” she answered, “ Yes ”; and “ Yes ” to the question, “ Then you made the remark ‘ You will probably outlive me ’ ? ”

It further appeared that Mrs. Sawyer gave the plaintiff “ a card to be signed,” which was put in evidence; that the plaintiff signed it “ Angeline Battles; residence, Plymouth ”; that there was no other writing on the card and that Mrs. Battles inferred Mrs. Sawyer took it to the bank; that Mrs. Sawyer did not give the book to the plaintiff; that the plaintiff never had the book; that the book always remained with Mrs. Sawyer; and that the plaintiff never drew or tried to draw any money from the account at the bank. The plaintiff answered “ Yes ” to the question “ The money was her money? ” and “ No ” to the question “ None of yours? ”

At the close of the evidence the defendant requested the court to rule:

“ 4. If Clara E. Sawyer intended to make a gift of the fund in question in the Millbury Savings Bank upon and in the event only of her death prior to the death of Angeline Battles, then as a matter of law, the gift, being testamentary in character, is in violation of the law of wills, and the plaintiff cannot recover the said sum.

“ 5. If Clara E. Sawyer and Angeline Battles intended that the fund in question in the Millbury Savings Bank should be a gift to Angeline Battles dependent upon and in the event only of the.death of Clara E. Sawyer prior to the death of Angeline Battles, then as a matter of law the gift, being testamentary in character, is in violation of the law of wills, and the plaintiff cannot recover the said sum.”

The trial judge denied all of the requests and the executor duly excepted.

After charging the jury that a gift cannot be made to take effect in the future, upon the contingency of death, the judge instructed the jury more particularly as follows: “ Now, you are not concerned in this case, and I am not going to instruct you whether there has been a gift to take effect upon the death of Mrs. Sawyer or not.” The judge then proceeded to instruct the jury at length upon the question “whether or not both of those women entered into a scheme and arrangement, of which this was a tangible expression, to effect the transfer of that money only after Mrs. Sawyer’s death' and therefore to cheat the statute of wills and the Commonwealth out of any money that might be coming due it in the shape of taxes”; and further instructed the jury, that “ to prevent the plaintiff from recovering both she and Mrs. Sawyer must be shown as parties to some scheme to do nothing else in this case except to circumvent and get around the statute of wills controlling the disposition of Mrs. Sawyer’s property.”

The refusal of the judge to give the requested rulings was error. As a matter of law Mrs. Sawyer could legally deposit money in a savings bank to the joint account of herself or Miss Battles, which deposit would operate as a present and complete gift in joint ownership if Mrs. Sawyer clearly intended such a result. Attorney General v. Clark, 222 Mass. 291. Chippendale v. North Adams Savings Bank, 222 Mass. 499. Marble v. Treasurer & Receiver General, 245 Mass. 504, 507. The retention of the deposit book by Mrs. Sawyer was evidence shedding light upon her intention, but was not conclusive against the right of Miss Battles to show by fact and circumstance the intention to make a present gift of a joint interest in the deposit. Industrial Trust Co. v. Scanlon, 26 R. I. 228. Marston v. Industrial Trust Co. 107 Atl. Rep. 88. See Bath Savings Institution v. Fogg, 101 Maine, 188. McCullough v. Forrest, 84 N. J. Eq. 101. Main’s Appeal, 73 Conn. 638, 642. Taylor v. Coriell, 21 Dick. 262, 268.

Upon the evidence above set out as a fair inference of fact the jury would have been warranted in finding the intent of Mrs. Sawyer was not to give a present irrevocable interest and title in the savings bank book and in the right it represented, but was that the title, control and disposition of the fund should remain in her (Mrs. Sawyer) until her death and that then, and in that event, the absolute title should devolve upon Miss Battles. Should the jury find that such was the intent of Mrs. Sawyer the gift would take effect only upon her death and would be obnoxious to the statute of wills. Sherman v. New Bedford Savings Bank, 138 Mass. 581.

It is undoubtedly true, as the plaintiff contends and as the judge in effect instructed the jury, that as between the defendant bank and Mrs. Sawyer or Miss Battles the right of either of them did not arise by virtue of a gift either at the time of the deposit or at the time of Mrs. Sawyer’s death, but was a right in the form of a chose in action against the bank created by a contract with the bank at the time the deposit was made; and it may be assumed that as between the bank and the parties the bank would be justified in treating the deposit as funds in which the parties had a joint interest. Bradford v. Eastman, 229 Mass. 499.

This case ceased to be an action between Miss Battles and the bank when the executor of Mrs. Sawyer was allowed to intervene as a claimant against the fund and to show by facts and attendant circumstances that in law there was not a present and perfected gift of a joint interest of the money when it was deposited in the bank or afterward. The charge was inapt and inappropriate to any issue before the jury and the exceptions thereto must be sustained. The case should have been submitted to the jury on the issue of a present perfected gift or of a gift to take effect after the death of Mrs. Sawyer, with appropriate instructions.

Exceptions sustained.