Zak v. Zak
25 N.E.2d 169
Mass.
1940
Check Treatment
Ronan, J.

On January 6, 1927, the plaintiff had a deposit of $993.93 in the City Five Cents Savings Bank of Haverhill, but apprehending that the money might be attached, and for the purpose of avoiding any attachment but not for the purpose of making any gift to his wife (who is one of the defendants and will herein be referred to as the defendant) or to pay family expenses, the deposit was withdrawn by the defendant in pursuance of a written order signed by the plaintiff. After paying with his approval certain of his expenses, the defendant, on July 2, 1927, deposited in her own name, with the knowledge of the plaintiff, the balance of this deposit amounting to $693.93 in the said bank, and refused to turn it over to the plaintiff when he requested her to do so in July, 1929. A master found that the defendant is holding the last mentioned sum “under an agreement between plaintiff and defendant that she should hold it for him, to be returned to him by her on demand, with, or without, interest according to law.” After confirming the report, a final decree dismissing the bill was entered in the Superior Court, from which the plaintiff appealed.

*196The conclusions of the master do not purport to be based solely upon his subsidiary findings and, the evidence not being reported, we must accept his conclusions as true since they are not inconsistent with the subsidiary findings. Dodge v. Anna Jaques Hospital, 301 Mass. 431. Bumpus v. Church, 302 Mass. 419. It is plain that upon the findings of the master the defendant was holding the plaintiff’s funds as his trustee, and that she was bound to deliver them to him upon his demand. Moore v. Mansfield, 248 Mass. 210. Jameson v. Hayes, 250 Mass. 302. O’Brien v. O’Brien, 256 Mass. 308. Cram v. Cram, 262 Mass. 509. Rosman v. Rosman, 302 Mass. 158.

The defendant contends that the transfer of the money to her was a part of a fraudulent scheme adopted by the plaintiff to avoid a possible attachment by one whom he had assaulted. The husband is not obliged to rest his claim upon such alleged conduct in order to establish his rights in the funds held by the defendant. No fraud was practised upon her and she cannot rely upon the alleged attempt of her husband to defraud a third person. Schmidt v. Schmidt, 216 Mass. 572. Pollock v. Pollock, 223 Mass. 382. Mascari v. Mascari, 255 Mass. 92. Hazelton v. Lewis, 267 Mass. 533. Hyland v. Hyland, 278 Mass. 112. Gerace v. Gerace, 301 Mass. 14.

Her refusal, in 1929, to turn over the money to him constituted a repudiation of the trust which entitled him to a decree — aside from loches and the statute of limitations, neither of which was pleaded. The defendant has had the possession of the plaintiff’s money and was not harmed by the delay in filing the bill. Calkins v. Wire Hardware Co. 267 Mass. 52. Alvord v. Bicknell, 280 Mass. 567. The gravamen of the bill is that the plaintiff entrusted money to the defendant to be deposited for his use and benefit and that the defendant refused to turn over to the plaintiff certain deposits belonging to him. The bill made no mention of the particular deposit now in question or of the defendant’s refusal to transfer the deposit to the plaintiff upon his demand in July, 1929. The proof supported the allegations in the bill and there was no variance as the *197defendant contends. The bill on its face did not, however, allege a cause of action which occurred more than six years prior to its filing. The statute of limitations was not set up by demurrer or answer. This defence is not now open to the defendant. Lennon v. Cohen, 264 Mass. 414, 422. Castaline v. Swardlick, 264 Mass. 481. McLearn v. Hill, 276 Mass. 519, 522. A decree is to be entered ordering her to deliver to him the sum of $693.93, with interest thereon at the rate of six per cent a year from the date of demand which, in the absence of any finding by the master as to the date in July, 1929, when such demand was made, we fix as August 1, 1929, Lydia E. Pinkham Medicine Co. v. Gove, 303 Mass. 1, 9-10, to the date of the final decree, together with costs. Forbes v. Ware, 172 Mass. 306. Arnold v. Maxwell, 230 Mass. 441. Prudential Trust Co. v. McCarter, 271 Mass. 132. Stuck v. Schumm, 290 Mass. 159. Am. Law Inst. Restatement: Trusts, § 207. The bill is to be dismissed against the corporate defendants with costs.

Ordered accordingly.