166 Mass. 255 | Mass. | 1896
The question between the plaintiff and claimant is whether a valid trust has been established in the plaintiff’s favor, so as to entitle him to the deposit, or whether what was done was an attempted testamentary disposition of it. That is a question of fact for the jury, and the distinction between the two was clearly pointed out by the presiding justice in his charge.
The jury were also told, in substance, that what was written in the bank-book was not enough, but that in addition to that the testator must have indicated to the plaintiff in some form of language that the deposit then belonged to him, although he could not have it until his father’s death, and that this was assented to by him.
There was testimony from the treasurer of the savings bank that at the time of the deposit the testator said that he wanted his son to have it after his death. There was also testimony from the plaintiff, the weight and import of which were for the jury, that about four months after the deposit the testator told him to take the book, saying somebody might take it, and that he should take it and his own and give them to his (plaintiff’s) niece; that the plaintiff took it and looked it over and saw about what it was, and then said he would leave it there until it was called for, and that he left it with his father until he died; that he knew it was there for him; that his father - reserved the right to draw what he saw fit, though he knew that he would only draw a little at a time ; and that his father told him that he could have it (the money) when he wanted it.
We cannot say, on this testimony, that the jury was not jus
The defendant objects further, that the charge was ambiguous, and that under it the jury might have found for the plaintiff even though the gift was to take effect at a future time or on the father’s death, and was not communicated to the son. We do not think that the objection is well taken. More than once in the charge the court pointed out the difference between a present gift and a future gift, and told the jury that, if. they found that what was intended by the father was a future gift, then the'plaintiff was not entitled to recover. The court also told the jury, that it was not enough that there should have been an intention on the part of the father to make a present gift, but that the intention must have been communicated to the son, and, as the charge plainly implied, assented to by him. Taking the charge as a whole, we discover no error or ambiguity in it.
Exceptions overruled.
