134 Mass. 260 | Mass. | 1883
It appears that evidence was admitted tending to prove that a deposit was made, in the Providence Institution for Savings by Nathan Ide, or some other person, and that a
As against the bank, if the bank were a party to the suit, the deposit-book and the entry in its books would be evidence that it had received money from somebody, and had promised to pay an equivalent amount with its accumulations to “ Elizabeth A. or Mary Ide, or the survivor of them.” But this evidence alone would not be sufficient to establish that the bank was a trustee of this fund. Money deposited in a savings bank, unless there is an agreement to the contrary, becomes the property of the bank, and the bank becomes a debtor therefor. The evidence was that the bank promised to pay the amount of this debt to Elizabeth A. or Mary Ide, or the survivor of them. The bank would have performed this promise by paying it to either in the lifetime of both, or to the survivor, and would have thus discharged its obligation. No evidence is recited of which the legal effect was to constitute the bank a trustee of the fund, upon a trust to pay one half of the dividends to Elizabeth and one half to Mary during their joint lives, and, on the death of either, to pay the whole fund to the survivor.
We are of the opinion that such is not necessarily the legal effect of a deposit of money in the manner described. If one person deposits money in a savings bank to the credit of another, whether he thereby intends to give it to him is a question of fact to be determined by evidence.
If it is one of the rules of the bank that money shall not be paid except upon presentation of the bank-book, and the depositor retains possession of the bank-book, and never communicates to the person in whose name the deposit is made the fact that he has made the deposit, this is evidence upon the question whether, even if the depositor intended to make a gift, he has fully executed his intention so as to make the gift complete ; and any evidence that the deposit was made in this form for any other purpose than to transfer the title to the person to whom it is credited, so that he may draw it for his own use and benefit, would of course be competent evidence upon the question whether a gift was ever intended. Broderick v. Waltham Savings Bank, 109 Mass. 149. Clark v. Clark, 108 Mass. 522. Brabrook v. Boston Five Cents Savings Bank, 104 Mass. 228. Pierce v. Boston Five Cents Savings Bank, 129 Mass. 425.
It appears by the exceptions that “ the court gave instructions to the jury as to what would constitute a perfected gift, to which no exception was taken.” The ruling given to which exception is taken is predicated upon the jury’s finding “ that such gift was completed by a transfer and delivery, and by a surrender of all control on his part over the fund.” If the jury found that the gift was completed, they must have found the terms of the gift, and who the donees were. But it is not clear what is meant in the instruction by this clause which we have just cited. The exceptions state that “ the only evidence of any possession of the deposit-book was that Mary had the book when she withdrew the money,” although it is previously stated that the defendant offered evidence tending to prove that the money
In the case at bar, no evidence is recited which would warrant the jury in finding that an active trust was created, such as is described in the instruction. There is no evidence that Mary agreed to hold the deposit or the money in trust during the joint lives of herself and Elizabeth. We think that, if this was a completed gift, on the evidence so far as it is before us, it was either a gift to Mary alone, or to Mary and Elizabeth jointly; and that it is for the jury to determine, upon all the evidence, which was intended by the donor; and that it is not now worth while to attempt to decide what the presumption would be if the only evidence was that this credit appeared upon the books of the bank, and that Mary had possession of the book corresponding therewith when she drew the money. What the other evidence was we do not know, but the instruction of the court, we think, may have misled the jury.
The exceptions state that the plaintiff offered evidence tending to prove that the amount drawn out by Mary “ was put into the bank by the depositor as a perfected gift to the uses declared in and by the terms of the deposit-book already referred to; ” and that this evidence consisted of the deposition of one Blodgett and other evidence. The nature of this other evidence does not appear. Blodgett was the treasurer of the bank, and the defendant objected to the seventh interrogatory and answer in his deposition. The witness had been asked in the sixth interrogatory to state whether, from an examination of the books, records and papers previously testified to have been in his custody as such treasurer, the bank had any business transactions with Elizabeth A. Ide, alone or in connection with Mary Ide, or the survivor of them, between certain dates named; to which he answered, “ Yes, it did.” The seventh interrogatory and answer were as follows: “ Int. 7. If it did, what do the books, records and papers in your possession as such treasurer of said institution show? Please answer this question by giving an exact