320 Mass. 367 | Mass. | 1946
This is an action of contract to recover the amount of a deposit in the Natick Five Cents Savings Bank which stood in the name of the plaintiff’s testator at the time of his death. The case was referred to an auditor, and it was agreed that his findings of fact should be final. Upon consideration of the auditor’s report the judge denied the defendant’s motion for judgment for him on the auditor’s report and allowed the plaintiff’s motion for judgment for him, and the defendant appealed. See G. L. (Ter. Ed.) c. 231, § 96. The case is properly before us on the defendant’s appeal from the allowance of the plaintiff’s motion for judgment in his favor, which was equivalent to an order for judgment for him and decisive of the case. Lawrence v. Old Silver Beach, Inc. 303 Mass. 377, 378.
Material facts are these: During the summer of 1944, the decedent signed an order to the Natick Five Cents Savings Bank to pay to the defendant or his order the whole amount of deposits and dividends due him “as per Book No. 55215.” The order was signed in the decedent’s boathouse in Wellesley and was witnessed by one Griffin, to whom the decedent said that he was not very well and might not live long, and that he wanted Ed (the defendant and brother of the decedent) to have “this money.” The decedent had a safe deposit box to which he and the defendant’s son George had had joint access since September 29, 1932. The defendant had never been, authorized to have access to the box. At some time in July or August, 1944, the decedent placed the order and book of deposit in the safe deposit box. He did not inform either George or the defendant of having done so. George did not see the order or the book until October 13,, 1944. The decedent had died tin October 8, 1944. On October 13, 1944, George went to the safe deposit box to see if he could find a will. He found there the book of deposit and order involved, and handed them to his father, the defendant. On October '
The report of the auditor whose findings of fact were to be final is equivalent to a case stated. Merrimac Chemical Co. v. Moore, 279 Mass. 147, 152. It was the duty of the judge to order the correct judgment on the facts found by the auditor. Howland v. Stowe, 290 Mass. 142, 146. Union Old Lowell National Bank v. Paine, 318 Mass. 313. It is settled that in order to effect a completed gift of personal property, such as in the present case, there must be a settled donative intention on the part of the donor, together with an actual or symbolic delivery of the subject matter of the gift to the donee or to someone in his behalf in such manner
Order for judgment for the
. plaintiff affirmed.