124 Mass. 590 | Mass. | 1878
The money deposited by the testatrix was inventoried by the appellant as a part of her estate. He had possession of the bank book, which she had retained in her own control during her life, and without which no part of the money could be withdrawn from the bank. The entries on the book showed that the testatrix had from time to time withdrawn portions of the money. The person named in the bank book as cestui que trust had no knowledge of the deposit; the money deposited had never been hers. On these facts, the money belonged to the estate of the testatrix, and the cestui que trust could not have maintained an action against the bank, for the amount of the deposit, as decided in Brabrook v. Boston Five Cents Savings Bank, 104 Mass. 228, unless the coverture of the testatrix when the deposit was made introduces a new and decisive element into the case. The argument is that the money deposited could not have been the money of the testatrix, because she was legally incapable of owning money, and that it must have been her husband’s money deposited by his direction in her name as trustee
We are of opinion, therefore, that the appellant was not warranted in paying the amount of the deposit, with the accrued interest, to the person named in the book as cestui que trust, and is not entitled to an allowance in his acount as executor for the amount so paid. Decree affirmed.