This is a bill in equity to obtain possession of a tin box and its contents. The case was reserved
The tin box contained four deposit books, two of the deposits being in the Hoosac Savings Bank and two in the North Adams Savings Bank. The other papers in the box were not of importance. The question presented is whether these deposits belong to Mrs. Worthington or to the administrator of the estate of Henry D. Williams.
Henry D. Williams, the plaintiff’s intestate, deposited his surplus earnings in the two savings banks mentioned above: He had a tin box in which he kept his deposit books and other papers. On October 2, 1908 (about a year and a half before he died), he took this box and, accompanied by his sister, Mrs. Worthington, went
Between October 2 and the date of his death Williams went to the North Adams Savings Bank from time to time, took the deposit books from the tin box and withdrew various sums of money. There was at least one withdrawal from each of the sums deposited under each of the four deposit books. In each case after
The master made the following finding of fact: “I find that all said changes in the bank books and accounts of both said Hoosac Savings Bank and North Adams Savings Bank were made at the request of said Henry D. Williams and with the assent of Mrs. Worthington for the purpose of transferring a joint interest in the same to Mrs. Worthington and that the changes made were in accordance with the customs of said banks for the purpose of making accounts joint so that withdrawals could be made by either party.” •
Mrs. Worthington has made two contentions: One, that the savings bank books were transferred to her in payment of money which was due from Williams to her; second, that they were transferred to her as a gift. The master found against Mrs. Worthington on the first contention. No argument on that ground has been addressed to the court. We treat that contention as abandoned.
In the cases heretofore before this court the question of the validity of gifts or attempted gifts of deposits in savings banks has arisen where the donor had undertaken to make a gift of them as property.' The case at bar is not such a case. In the case at bar Williams did not undertake to make a gift to Mrs. Worthington of his four savings bank deposits as four pieces of property. In place of doing that he undertook to make a new deposit of the money which theretofore had been deposited in his name alone.
The new deposit in the Hoosac Savings Bank by its terms was a deposit to be paid during the lives of Williams and of Mrs. Worthington or either of them as they should call for the deposit or a part of it, and the balance (not withdrawn during their joint lives) was to be paid to the survivor of them. Such a contract between a depositor or depositors and the savings bank is a valid contract. If Mr. Williams had gone to the savings bank with a sum of money he could have made such a contract with the savings bank. What took place was the equivalent of that by reason of a novation with respect to the account theretofore on deposit in Williams’s name alone. The case therefore which we have to decide is not a case of an attempted gift of property but is a case where Williams the
In such a case there is no gift of the balance upon the death of Williams. Mrs. Worthington (when she survived Williams) became the owner of the balance undrawn by virtue of the contract of deposit, and not by virtue of a gift which took effect on Williams’s death. Mrs. Worthington takes as survivor by virtue of the terms of the deposit in the same way that a joint tenant takes as survivor where land has been conveyed (as it may be conveyed, through a conduit) by way of gift to the donor and donee as joint tenants. Palmer v. Treasurer & Receiver General, ante, 263. Attorney General v. Clark, ante, 291. If the donee survives, in that case, he takes by virtue of the estate created by the conveyance and not by virtue of a gift which takes effect upon the donor’s death. This is established by the principles on which it is settled that a donor may make a valid gift of property reserving to himself a life interest in the property given. See Bone v. Holmes, 195 Mass. 495, 505, and cases there cited; Kelley v. Snow, 185 Mass. 288. The reason why there is a valid gift in that case (although there is a reservation to the donor of the income during his life) is because what is given in that case is the corpus of the property, and the gift of the corpus in such a case is complete when the gift is made and does not take effect as a gift when the donor dies.
There is nothing to the contrary in the special finding made by the master, in these words: “On one of these visits [to the North Adams Savings Bank] he spoke of the trouble in his home and said to Mr. Whitaker that he hoped the bank would take care of the box for Mrs. Worthington, and be sure and see that she and nobody else gets it. On account of these troubles and for other reasons he desired to divert this property from his wife and give whatever of it he did not use before his death to his said sister and I find it was his purpose and intention, in doing what he did toward transferring the bank books to his sister, not to part [with] full control with [of] them but to fix them so that he could draw whatever he wished on them during his life time and so that his
The terms of the new contract entered into with the North Adams Savings Bank are not so clear as those in case of the Hoosac Savings Bank. There was no survivorship provided for in terms by the new deposit in that bank. All that was stated in that contract of deposit was “may be drawn by his sister Abbie Worthington.” We are of opinion that as matter of construction this means that the deposit may be withdrawn by her at any time, i. e. before or after the death of Williams. So construed this deposit stands on the same footing as the deposit in the Hoosac Savings Bank.
Under these circumstances it is not necessary to consider whether there was a valid gift of the old or new deposit as a piece of property.
From the defendant’s argument we assume that the only matter insisted upon by her is her right to the four savings bank deposits, and that she does not claim to own the tin box and other papers therein contained apart from the deposit books.
The result is that a decree may be entered directing the North Adams Savings Bank to allow Mrs. Worthington to take from the tin box in its custody, formerly the property of Henry D. Williams, the four deposit books contained therein and that it deliver to the plaintiff said box and its contents other than said deposit books and that as to the defendants Mrs. Worthington and the Hoosac Savings Bank the bill is to stand dismissed.
So ordered.
The case was submitted on briefs.
In the Superior Court by Hall, J.