52 N.H. 238 | N.H. | 1872
One argument of the plaintiff’s counsel is, that the deposit of this money by Eliza Powers, under the circumstances shown,raised a resulting trust in her own favor. But parol evidence is admissible to rebut the presumption of a resulting trust. Perry on Trusts, sec. 139, cases in note 3 ; and we find from the case that it was the intention of Eliza Powers to make a valid gift of the fund in controversy to the defendant, Sarah E. Locke. Such intention must control; and the effect of it is to overcome any presumption of a resulting trust that might otherwise be raised. This finding of fact,
To constitute a valid gift, inter vivos, there must be a delivery and acceptance by the donee. “ A court of equity will not assist a volunteer, yet, if the act is completed, though voluntary, the court will act upon it.” Lord Eldon in Ex parte Pye, 18 Ves. 149. Was there a sufficient delivery here?
One of the by-laws of the bank, under which Eliza Powers deposited this money, provided that “ Deposits and dividends may be withdrawn by the depositor, or by any person authorized by the depositor, on giving a week’s notice thereof, on producing the original deposit-book, and giving a receipt therefor, in addition to the entry of such payment upon the said book.” We are clear that she must be held to have adopted this by-law as part of her act in placing the money in the hands of the bank. And herein the case differs from Perry’s Petition, 16 N. H. 44. There, there was a special deposit, wherein it was expressly provided that, in case of the death of the proposed donee, or cestui que trust, before arriving at the age of twenty-one, it was to be paid to the depositor or his heirs on demand.
The most favorable view for the plaintiff that can be taken is, we think, that the deposit amounted to a valid declaration of a trust in favor of the donee; that it was a delivery to the bank as trustee for her niece. Although one condition of the by-law is, that the deposit shall only be withdrawn upon presenting the original deposit-book, still, another is, that it shall only be withdrawn by the depositor, or some person authorized by the depositor. Considering, then, that Eliza Powers adopted the whole by-law as part of her act in making the deposit, there would seem to have been a clear and absolute renunciation of title by her in the fund, and an unequivocal transfer of the possession upon the terms and conditions set forth in the by-law. She, in fact, chose this mode of making a complete and definite appropriation of the money. A stronger declaration of trust could hardly be framed than that created by the manner of making the deposits,— that is, in the name of her niece, without. qualification or condition, supplemented by the by-law of the bank, which she adopted. We think, therefore, that the delivery to the bank as trustee for her niece was a sufficient delivery, good at least until the trust was revoked, and that an acceptance by the donee before a revocation (admitting it to be revocable) would consummate the gift.
This goes far enough to dispose of the case without inquiring whether the deposit was alone sufficient to pass the title absolutely to the donee, as has been held in such cases as Howard v. Savings Bank, 40 Vt. 597, and Millspaugh v. Putnam, 16 Abb. 380;—see, also, Hunter v. Hunter, 19 Barb. 631; Grangiac v. Arden, 10 Johns. 293; Benbow v. Townsend, 1 Myl. & K. 506; Minchin v. Merrill, 2 Edw. Ch. 333; Penfield v. Public Administrator, 2 E. D. Smith 305;—for the case shows that the intestate, before her death, informed the donee that there were three savings bank books in the trunk, and that one of
