219 Mass. 597 | Mass. | 1914
The plaintiff’s title to the fund did not rest upon the assumption of a gift to him by his deceased wife by whom and in whose name the deposit had been made, but upon his contention that without his knowledge or consent the money being his property had been taken and appropriated by her. It is stated in the report, that the bank book was not produced at the trial, “and none of the parties had any knowledge of its whereabouts.” A demand having been made for payment, which the bank unqualifiedly refused, and the jury having found that when deposited the money was his property, it has no defense to the plaintiff’s action Broderick v. Waltham Savings Bank, 109 Mass. 149. Bailey v. New Bedford Institution for Savings, 192 Mass. 564. Cole v. Bates, 186 Mass. 584, 586.
But, as the depositor died testate and the executrix claimed the-deposit, the petition of the bank under the provisions for inter-pleader in R. L. c. 113, § 38, that the proceedings be amended by making the claimant who is “another party than the plaintiff” the defendant was properly allowed. The question thereafter was whether the plaintiff or the claimant was entitled to the fund.
' The court furthermore had jurisdiction of the subject matter and of the parties. If the claimant upon being cited in desired to raise the question whether the proceedings were irregular because not in conformity with her construction of the statute, she should have done so before joining issue and going to trial on the merits. The motion to quash filed after the verdict against her came too late. Craig Silver Co. v. Smith, 163 Mass. 262, 268. R. L. c. 173, § 46. And the plaintiff’s motion for judgment was rightly allowed. R. L. c. 177, § 1.
By the terms of the report the plaintiff is to have execution in accordance with the order of June 24, 1914, and in the subsequent action brought by the executrix the defendant bank is to have judgment without costs.
So ordered.