Alger v. North End Sav. Bank

• Citation: 146 Mass. 418,15 N.E. 916
• Parties: ALGER v. NORTH END SAV. BANK, (WOOD, Claimant.)
• Decision Date: 06 March 1888
• Court: United States State Supreme Judicial Court of Massachusetts

146 Mass. 418

15 N.E. 916

ALGER
v.
NORTH END SAV. BANK, (WOOD, Claimant.)

Supreme Judicial Court of Massachusetts, Suffolk.

March 6, 1888

COUNSEL [146 Mass. 421]

[15 N.E. 916] J.G. Abbott and A.B. Alger, for plaintiff.

The case comes here precisely in the same way as Sherman v. Bank, 138 Mass. 581, came before this court, under Pub.St. c. 153, § 14. The only question is whether the deposit in question was given to the claimant by the plaintiff's testate, Trumbull, in his life-time, so that she can claim it against Trumbull, if living, and, he being dead, against his administrator. The plaintiff claims that there was never a perfected gift; that there never existed even the intention on the part of Trumbull to put the control of the deposit out of his power during his life-time; that, at most, it was but an attempt to make a testamentary disposition of the money without complying with the provisions of law required to make a valid will. The whole evidence to sustain the gift comes from the claimant. An intention to make a gift, or even the most clear and distinct promise to make one, is never sufficient to pass the title to personal property. There must be an actual delivery of the thing, if capable of delivery, and in all other cases some act by law equivalent to delivery. Sherman v. Bank, supra; Nutt v. Morse, 142 Mass. 1, 6 N.E. [15 N.E. 917] 763; Hayden v. Hayden, 142 Mass. 448, 8 N.E. 437; Snowden v. Reid, 8 Atl.Rep. 661. The deposit of money in a savings bank in the owner's name as trustee for another is never sufficient to make a gift. There must be other acts proved to make a perfected gift. Nutt v. Morse, supra, and cases there cited. The burden to prove a perfected gift or conveyance is upon the defendant, and very clearly she does not sustain that burden.

Wm. C. Williamson, for claimant.

The deposit in the case at bar was made in strict accordance with the provisions of Pub.St. c. 116, § 32, and therefore it "may be paid to the person for whom such deposit was made, or to his legal representative," unless there is extraneous evidence to control it. It was made in accordance with a bylaw of the bank. The deposit book contained the following among the bylaws of the bank: "Art. 11. Any depositor may designate at the time of making the deposit the period for which he is desirous that the same shall remain in the bank, and the person for whose benefit the same is made; and such depositor and his legal representatives shall be bound by such conditions by him voluntarily annexed to his deposit." Even if the money deposited in the manner described had been a mere gift from the defendant's intestate to the claimant, there were circumstances attending it which were entirely wanting in those recent cases which will probably be cited in opposition to the claimant's view. One of these important circumstances present in the case at bar is the fact that the claimant was fully informed by the depositor of the making of the deposit in trust for her, before and after he made it. In Brabrook v. Bank, 104 Mass. 228, the donees had no knowledge of the deposits until after the death of the depositor. In Clark v. Clark, 108 Mass. 522, a deposit was made in trust, but the donee, a sister of the depositor, had no notice of the deposit until after the death of her sister, and never had possession of the bank-book. In Cummings v. Bramhall, 120 Mass. 552, a testator had in his life-time transferred to his two daughters certain bank shares. He retained control of the stock, collected the dividends, and the donees knew nothing of the transfer until after his death. In Sherman v. Bank, 138 Mass. 581, no notice was given the donee, and the deposit book was retained by the depositor. On the other hand, in Gerrish v. Institution, 128 Mass. 159, the claimants were sustained on the ground that the depositor had declared to them that he had put the money in the bank for them, although he never had delivered the deposit books to any of them. And in Eastman v. Bank, 136 Mass. 208, the deposit was made in the name of the donee, but subject to the order of the donor, who made the deposit and retained the book; yet, on evidence of the oral statements of the donor, the gift was held to have been perfected. The case finds that Trumbull drew none of the dividends which accumulated before his death upon the deposit. It also appears that although he retained custody of the deposit book, he retained it only in the same manner that he had retained a deposit book representing claimant's individual deposits. In the present case, however, the money deposited by Trumbull was not a gift but a payment. The monthly stipend which the claimant received was evidently not regarded either by her or by Trumbull as...