Bailey v. New Bedford Institution For Savings

• Decision Date: 16 October 1906
• Citation: 192 Mass. 564,78 N.E. 648
• Parties: BAILEY v. NEW BEDFORD INSTITUTION FOR SAVINGS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

192 Mass. 564

78 N.E. 648

BAILEY v. NEW BEDFORD INSTITUTION FOR SAVINGS.

Supreme Judicial Court of Massachusetts, Bristol.

October 16, 1906

COUNSEL

Asa Auger, for plaintiff.

F. A Milliken, for claimant.

OPINION

KNOWLTON C.J.

The money on deposit in the savings bank was originally the property of the testatrix, and there is no doubt that it remained hers up to the time of her death, unless there was a perfected gift of it to Edward B. C. Bailey in her lifetime. It is clear that the mere deposit of it in her name, as trustee for him, did not deprive her of her ownership and control of it. The statement signed by her at the time of making the deposit implies that it remained her property and subject to her control, although it indicates an intention on her part that so much, if any, of the deposit as she allowed to remain there to the time of her death should become his property. But she could not pass the title to property after her death by such a deposit or by such a statement. Unless it passed in her lifetime, it did not pass at all. To pass property by a gift, there must be a delivery of it to the donee, and acceptance of it by him, or something which is equivalent to such a delivery and acceptance. This has been decided in many cases in which the question has arisen in reference to a deposit in a savings bank in the name of another, or as trustee for another. In Brabrook v. Boston Five Cents Savings Bank, 104 Mass. 228-231, 6 Am. Rep. 222, Mr Justice Wells said: 'There must be some act of delivery out of the possession of the donor, for the purpose and with the intent that the title shall thereby pass. * * * If the act of transfer be complete on the part of the donor subsequent acceptance by the donee before revocation will be sufficient.' In Scriven v. North Easton Savings Bank, 166 Mass. 255, 44 N.E. 251, it is held that, in addition to what was written in the bank book, '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.' In the opinion in Alger v. North End Savings Bank, 146 Mass. 418-422, 15 N.E. 916, 4 Am. St. Rep. 331, we find similar language. Other cases of like import are Clark v. Clark, 108 Mass. 522; Ide v. Pierce, 134 Mass. 260; Nutt v. Morse, 142 Mass. 1, 8 N.E. 763; Sherman v. New Bedford Five Cents Savings Bank, ...