56 A.2d 925 | N.H. | 1948
In our opinion the recommendation of the master must be followed and title to the two deposits decreed to be in the administrator of the estate of John O. Howell. The findings of the master that the decedent never surrendered control over the deposits to the plaintiff are amply sustained by the evidence. The plaintiff herself admitted that she never had the books, nor access to the deposit box in Howell's name where they were kept, nor drew money from either account. It is plain that the decedent retained full control over the deposits until his death and hence there was no gift inter vivos to the plaintiff. New Hampshire Savings Bank v. McMullen,
However the plaintiff further contends that there was an "agreement or an arrangement" by the decedent with the president and treasurer of the bank which "would result" in payment to the plaintiff of the deposits upon his death, and also that the evidence warrants a finding that a trust was established. In our opinion both contentions must fail. The plaintiff cites Ibey v. Ibey,
The final ground upon which the plaintiff bases her case is that a trust was established. But here again the master's unequivocal finding that Howell retained "full control" over the deposits during his lifetime is fatal to such a contention. This finding is, in effect, that no present interest passed to the plaintiff, and hence no trust was established. Bartlett v. Remington, supra; Towle v. Wood, supra; Fernald v. Fernald,
If the result in this instance appears to thwart the intention of the decedent the rule may be changed by legislation. Cf. Laws 1945 (Ala.) Act 232; R.S. (Me.) 1944, c.
It was discretionary with the master whether to allow the plaintiff to testify to facts occurring during the decedent's lifetime and within his knowledge, depending on whether injustice would have been done without such evidence. R.L., c. 392, s. 26. The record discloses a liberal interpretation of this statute in favor of the plaintiff, and no abuse is seen in ruling out certain testimony offered by her which appears to have been mainly cumulative. The plaintiff requested the Trial Court to recommit the case to the master for further findings and rulings, but since they would have been either immaterial or inconsistent with those already made, the Court correctly denied the request.
The plaintiff's exceptions to the master's failure to make certain other findings of fact and rulings of law as requested have been carefully examined. Both are disposed of on the ground that they are inconsistent with the facts found and rulings of law made which are herein upheld.
It appears that the master's recommendation for a decree establishing title to the two deposits in the administrator should be followed.
Exceptions overruled.
*51All concurred.