Moore v. O'Hare, 224 Mass. 283

Moore v. O'Hare

224 Mass. 283 | Mass. | 1916

Pierce, J.

Upon the testimony reported by the commissioner and the deposition of Mrs. Snow, after making due allowance for her manifestly somewhat impaired memory, we find and adopt the conclusions of fact found by the trial judge.

There is evidence that the testatrix, Mary Dignan, hereafter called the defendant, on April 8, 1874, deposited $200 in the Provident Institution for Savings in Boston in her name as trustee for Theresa Healey (the plaintiff) then seven years of age and living in Ireland; that this sum of $200 was money actually belonging to Theresa Healey having come from the estate of her deceased mother, Elizabeth Healey, who died in December, 1873, in Boston, intestate, the plaintiff being her sole heir at law and next of kin; that between April, 1874, and May, 1881, the time when the plaintiff came to this country, the defendant deposited in the trust account an additional sum of $350 to which was added the accumulated interest; that upon the plaintiff’s arrival in this country she entered the service of a Mrs. Crombie, where the defendant was employed; that between May and October, 1881, the defendant showed the bank book to the plaintiff and told her that the money the plaintiff’s mother had left was to be put in the bank *285in trust for her; that the defendant collected wages earned by the plaintiff between 1882 and 1889, amounting to $1,190, stating that she was saving them for the plaintiff and “was putting it [[them] with my mother’s money so that I should have that” in trust; that of these wages the defendant deposited in the trust account the sum of $350 and mingled the balance, $700, with her own funds and never accounted for them; that thereafter the defendant frequently stated to the plaintiff that the wages which she received were being put in trust and saved for the plaintiff; that the defendant made like statements to Mrs. Snow, and stated to her attorney “that originally she had deposited a sum of money in that institution [[the Provident Institution for Savings] in trust for her niece, Theresa Healey; that she went to the Provident Institution and told the receiving clerk that she desired to open an account; to have the use of that account during her lifetime; to add to it or withdraw from it, including the interest, and that after her death it was to go to her niece, Theresa Healey; ” that on March 20, 1890, the defendant withdrew $1,088.39 then on ■deposit in the savings bank and immediately redeposited in the same bank in her own name $1,000; that there remained unexpended of the wages held for the plaintiff $700 in addition to the $1,088.39 withdrawn; and that the plaintiff had reason to believe and did believe the trust fund remained intact until after the death of the defendant.

The facts and the inferences of fact naturally to be drawn therefrom are sufficient to justify and require a ruling that the account in the savings bank became a completed gift in 1881 when the defendant made known to the plaintiff that the money first deposited in 1874 was money of the mother of the plaintiff, that the deposit in its form was in trust for the plaintiff, that the defendant stated that the plaintiff could have it if anything happened to the defendant and that it would be something that the plaintiff could always have. Supple v. Suffolk Savings Bank, 198 Mass. 393.

That the gift was then accepted may be inferred from the fact that a part of the deposit belonged originally to the plaintiff subject to the administration of the estate of the mother and that it was a benefit and not a burden to the plaintiff to receive it: Gerrish v. New Bedford Institution for Savings, 128 Mass. 159. Alger v. North End Savings Bank, 146 Mass. 418.

*286The wages of the plaintiff, collected by the defendant fora period, of over seven years before 1890, under a declaration of purpose to conserve and care for them in the interest of the plaintiff, were impressed with a trust which was not divested upon their deposit in the savings bank fund or upon their being mingled with other moneys of the defendant. See Jones v. McDermott, 114 Mass. 400; Campbell v. Whoriskey, 170 Mass. 63; Pierce v. Perry, 189 Mass. 332, 335.

There was no error in the refusal to make the rulings and findings requested by the defendant. It follows that the decree of the court should be affirmed.

Decree accordingly-