287 Mass. 351 | Mass. | 1934
The petitioner brings this petition in equity in the Probate Court against the executor of the will of William J. Anderson and against him individually to establish a trust in a deposit in the Union Savings Bank of Boston for the benefit of the petitioner.
The judge of probate found the following facts: The testator, William J. Anderson, died January 18, 1933, when about ninety-three years of age, leaving a will which has been allowed. The respondent Parker is named as executor and residuary legatee. No gift was made to the petitioner in the will. In July, 1910, the testator deposited $1,000 in the Union Institution for Savings in his name “Tr. for Eva Robertson,” the petitioner, which is the subject of this suit. The petitioner and another person were the testator’s second cousins, his wife having died in 1914. In July, 1910, he had another older deposit in this savings bank then amounting to about $1,600. The judge further found that “By statute and . . . by-laws of the bank, the amount of interest bearing principal per
It is not contended by the petitioner that the deposit in question was a gift inter vivas. She contends, however, that the making of the deposit constituted a trust for her benefit and that she is now entitled to the principal sum of the trust. “A deposit in a savings bank in the name of another is not alone sufficient to prove a gift. . . . Nor is the fact that the savings bank book designates the depositor as trustee for another conclusive evidence of the existence of the trust.” Booth v. Bristol County Savings Bank, 162 Mass. 455, 457. Mulloy v. Charlestown Five Cents Savings Bank, 285 Mass. 101. The evidence is not sufficient to warrant a finding that the testator intended to create a trust in favor of the petitioner. A finding was warranted that the testator made the deposit of $1,000 as “Tr. for Eva Robertson” so that he might collect the interest thereon, as he had another older deposit of $1,600 in the same bank and the bank would not have accepted the $1,000 in his own name as a depositor. It was said by Holmes, J., speaking for the court in Parkman v. Suffolk Savings Bank, 151 Mass. 218, at pages 219-220: “The fact that the savings bank book designates the plaintiff’s intestate trustee for the claimant is not conclusive of the existence of a trust. . . . As it is a well known practice for people who have deposited in their own names the full amount allowed, to open new accounts ostensibly as trustees for others, but in fact for their own benefit, evidence that the intestate had deposited the full amount allowed to his own use was admissible as offering a possible explanation of the form adopted other than the intention to make a gift.” The testimony of the petitioner, that the testator said “that she had money coming to her, that ‘there is money in the bank for you,’ that when he was through, she would be taken care of, that she ‘would have what he had,’ ” does not require a finding that he intended to establish a trust of the $1,000 in her favor.
It is argued by the petitioner that there is a marked similarity between the facts found in the case of Gerrish v. New Bedford Institution for Savings, 128 Mass. 159, and those appearing in the present case. In that case it appeared that the testator made three deposits as trustee, one of
The facts in the case at bar distinguish it from Alger v. North End Savings Bank, 146 Mass. 418, Supple v. Suffolk Savings Bank, 198 Mass. 393, McCaffrey v. North Adams Savings Bank, 244 Mass. 396, Buteau v. Lavalle, 284 Mass. 276, and other cases cited by the petitioner.
In view of the facts recited in the record, the judge correctly found that the petitioner is not entitled to the deposit described in the petition and that it is an asset belonging to the estate.
Decree affirmed.