313 Mass. 379 | Mass. | 1943
This is a petition brought in the Probate Court by the administrator with the will annexed of the estate of Everett S. Noble, late of Cambridge, deceased, against Hubert C. Barton to recover the sum of $1,200 transferred by the decedent to the respondent. The case was referred to a master who filed a report. By a decree of the court the report was confirmed and the respondent was ordered to pay to the petitioner the sum of $1,200. The respondent appealed.
There was no error.
The facts found by the master include the following: The decedent died by his own hand on December 3, 1938. At “the time of his death ... he was, and for some considerable period prior thereto had been, hopelessly insolvent.” This insolvent condition extended at least as far back of his death as November 19, 1938. On that day the decedent borrowed from an aunt the sum of $1,200, and on November 28, 1938, “by her order” the money so borrowed was deposited to his credit in the Cambridge Trust Company, herein referred to as the bank. On the
It is unnecessary to consider the precise legal relation between the decedent and the bank created by the facts found. See, however, American Express Co. v. Cosmopolitan Trust Co. 239 Mass. 249, 252-253; Foreign Trade Banking Corp. v. Cosmopolitan Trust Co. 240 Mass. 413, 414-415; Gellert v. Bank of California, National Association, 107 Ore. 162; Note, Transmission of Money and Sale of Credit, 33 Yale Law Journal, pages 177-184 and cases cited. At any rate, the respondent acquired no rights upon the cashier’s check in which he was named as payee until it was delivered to him, whatever rights and obligations between the bank and the decedent were previously created. See G. L. (Ter. Ed.) c. 107, §§ 18, 53; Liberty Trust Co. v. Tilton, 217 Mass. 462, 465; Goodman v. Gaull, 244 Mass. 528, 529. On the facts found the decedent was not the agent of the respondent, and consequently delivery by the bank to the decedent was not delivery to the respondent. We assume, however, in favor of the respondent that the mailing of the check by the decedent to the respondent constituted delivery thereof to the respondent though the check was not received by the respondent until after the death of the decedent,
The cashier’s check, however, was merely a means of transmitting money of the decedent to the respondent. On the facts found this money was not transmitted to the respondent as a gift, or in payment of indebtedness of the decedent to the respondent, for he was not a creditor of the decedent. No consideration for the cashier’s check or for the proceeds thereof passed from the respondent to the decedent. Furthermore, the respondent was not the agent of his wife and children, who were creditors of the decedent, to receive payment of the decedent’s indebtedness to them, and consequently the delivery of the cashier’s check to the respondent did not constitute a payment by the decedent to these creditors of his indebtedness to them. The money of the decedent was transmitted by him to the respondent for the payment of these creditors in accordance with instructions given to the respondent by the letter of the decedent accompanying the cashier’s check. Under these instructions the money transmitted by the decedent to the respondent was to be used by the respondent, as agent of the decedent, to pay these creditors. But the authority of the respondent, conferred by the letter of the decedent, to make such payment from the money of the decedent transmitted to the respondent by means of the cashier’s check was terminated by the death of the decedent before the payment was made by the respondent. Mitchell v. Weaver, 242 Mass. 331, 335. Lewis v. Commissioner of Banks, 286 Mass. 570, 574. Am. Law Inst. Restatement: Agency, §§ 120, 386. And this would be true even if, contrary to the facts here found, the respondent had not had notice of the death of the decedent. § 120, continent b; § 386, comment d. General Laws (Ter. Ed.) c. 107, § 17, permitting payment of a check after the death of the drawer, does not affect the point here decided. See Burrows v. Burrows, 240 Mass. 485, 488.
Since the money of the decedent transmitted to the respondent for the payment of creditors of the decedent was not used for that purpose while the respondent had authority
The gist of the petition is that the decedent transferred to the respondent the sum of $1,200 which constituted assets of the estate of the decedent at the time of his death. The prayers of the petition are that the petitioner recover the sum of $1,200 from the respondent. The allegations of fact in the petition, however, are framed on the theory that the transfer of the sum of $1,200 by the decedent to the respondent was made to “hinder, delay and defraud” the creditors of the decedent and, somewhat more vaguely, that such transfer constituted a preference under G. L. (Ter. Ed.) c. 198, §§ 10A, 10B. There are, however, allegations that the transfer was made only four days before the death of the decedent, that the decedent was then insolvent, that the respondent was not a creditor of the decedent and that the transfer to him was made without consideration. In view of the “plain and ultimate purpose” of the petition as disclosed by the allegations of fact and the prayers (see Manazir v. Dahood, 302 Mass. 290, 293), we can hardly say that the decree ordering the respondent to pay the sum of $1,200 to the petitioner, though based
The sole contention of the respondent is that there can be no recovery against him on the ground that the transfer of the sum of $1,200 to him by the decedent constituted an illegal preference for the reason that the respondent was not a creditor of the decedent, relying upon Rubenstein v. Lottow, 220 Mass. 156, 164. Since, however, the decision of the present case does not rest upon the ground that the transfer constituted an illegal preference, and this defence is inapplicable to the ground upon which the case is decided, we need not consider this contention.
Decree affirmed.