196 Mass. 254 | Mass. | 1907
On the pleadings as amended the controversy became one between Sadie W. Bryant, for whose benefit the action originally was brought in the name of the administrator, and the administrator; — the writ and declaration being amended by making her the plaintiff, and the administrator appearing as claimant. The savings banks disclaim any interest in the funds and are ready to pay them over to whomsoever the court shall decide is entitled to them. The amended declaration alleged in each case, so far as material, “that said John Bannican (the intestate) during his lifetime assigned and delivered to her, the said Sadie W. Bryant, said book and the sums therein stated as deposited and all other sums therein stated of accumulated interest and dividends,” and that the bank owed her the same. The answer of the administrator, which was the same in each case, contained a general denial except that it was alleged, that a deposit was made in the bank in the name of said John Bannican, which was admitted, and that it was specifically denied that said Bannican assigned or delivered said bank book to said Sadie W. Bryant during his lifetime, and was averred that, if it should appear that said Bannican signed any transfer or assignment of said deposit to said Sadie W. Bryant, he had not sufficient mental capacity to execute the same, and that it was procured by fraud and undue influence. The plaintiff joined issue on the answer.
At the trial the plaintiff relied on what purported to be written assignments of the deposits from Bannican to her. The administrator offered to show that the signatures were forgeries. The judge excluded the evidence under B. L. c. 173, § 86, and instructed the jury in substance that the genuineness of the signatures could not be attacked for want of a specific denial of them in the answers, and of a demand requiring the plaintiff to prove them. The jury returned a verdict for the plaintiff in each case, and the cases are here on exceptions by the administrator to the ruling thus made and the instructions thus given.
We think that the presiding judge was wrong. The statute referred to provides, that “ A signature to a written instrument which is declared on or set forth as a cause of action . . . shall be taken as admitted unless the party sought to be charged thereby
Exceptions sustained.