Wade v. Button

| Vt. | Feb 24, 1900

Thompson, J.

About July 27, 1893, the defendant, E. A. Button, and her husband, Alonzo Button, received from Lucinda H. Tarbell, plaintiff’s testate, $300.00, and held the same to her use until the decease of Alonzo Button; and thereafter the defendant held the same for the use of said Lucinda and subject to the writing hereinafter mentioned, until the death of said Lucinda which occurred in January, 1898. Since her death $22.13 of interest has accrued on the $300. This action is brought, to recover the $800 and accrued interest. The money when received by the Buttons, was deposited in their name in the Richford Savings Bank, and has since remained there. After the delivery of the money to the Buttons, Lucinda H. Tarbell executed and delivered to defendant, E. A. Button, a writing as follows: “Emeroy A. Button, September 6th, 1893. If I do not live to use my money up that I have in the bank here in Rich-ford, and Mrs. Toof is living, I want you to give her, Emma C. Toof, one hundred dollars, and I want you to give George N. Rounds one hundred dollars, also one hundred dollars to Lou Rounds Moses.” (Signed) “ L. H. Tarbell.”

Prior to the execution of this writing, there was nothing to prevent said Lucinda from using or disposing of this fund as she saw fit to do. If the Buttons held it in trust for her, the trust was a simple or dry trust. Atkins v. Atkins, 70 Vt. 567. By the execution and delivery of this writing and the holding of the money thereunder, a valid voluntary trust was created for the benefit of the persons therein named, subject to be defeated only by said Lucinda’s using up the fund during her life. This she did not do. Stone v. Hackett, 12 Gray 227; Davis v. Ney, 125 Mass. 590" court="Mass." date_filed="1878-11-15" href="https://app.midpage.ai/document/davis-v-ney-6419441?utm_source=webapp" opinion_id="6419441">125 Mass. 590; Blanchard v. Sheldon, 43 Vt. 511; Williams v. Haskins Est., 66 Vt. 383; Sargent v. Baldwin, 60 Vt. 17" court="Vt." date_filed="1887-10-15" href="https://app.midpage.ai/document/sargent-v-baldwin-6583016?utm_source=webapp" opinion_id="6583016">60 Vt. 17; Conn. River Savings Bank v. Albee, 64 Vt. 571" court="Vt." date_filed="1892-02-15" href="https://app.midpage.ai/document/conn-river-savings-bank-v-albee-6583895?utm_source=webapp" opinion_id="6583895">64 Vt. 571. It could not be defeated by the will of said Lucinda subsequently executed and only taking effect at her decease. The beneficiaries under the trust are entitled to the interest which has accrued since her death as well as to the $300.

Judgment reversed and judgmentfor defendant, E. A. Button, to recover her costs.