Ball v. Forbes

• Decision Date: 28 June 1943
• Parties: DANIEL W. BALL, administrator, v. FLORENCE E. FORBES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

314 Mass. 200

49 N.E.2d 898

DANIEL W. BALL, administrator, v. FLORENCE E. FORBES.

Supreme Judicial Court of Massachusetts, Middlesex.

June 28, 1943

May 3, 4, 1943.

Present: FIELD, C.

J., DONAHUE, QUA DOLAN, & COX, JJ.

Gift. Joint Tenants.

Bank and Banking. Personal Property, Joint tenancy. Practice, Civil, Charge to jury.

The mere facts that depositor in a savings bank transferred the account to the names of himself and another "as joint tenants either to draw, survivor to take all," and that the new joint tenant accompanied the original depositor to the bank and signed a card there, while they established a contract conclusive as between those parties and the bank even though the original depositor retained control of the deposit book did not preclude the representative of the estate of the original depositor from showing by attendant facts and circumstances that he had not intended thereby to make a completed present gift of a joint interest in the account.

At the trial of an action by an administrator, where an issue was, whether the plaintiff's intestate, in transferring a deposit in a savings bank from his own name to those of himself and another as joint tenants,

"survivor to take all," had intended to make a present gift or merely a transfer not to take effect until his death, it was error to instruct the jury categorically that there was a present gift.

CONTRACT. Writ in the superior Court dated January 7, 1941. The case was tried before Dowd, J.

P. C. Hanna, for the plaintiff. J. F. Thistle, for the defendant.

DOLAN, J. This is an action of contract brought by the administrator of the estate of James Edward Bronson, also called Edward Bronson for money had and received to the use of the plaintiff. The case was referred to an auditor and was subsequently tried before a jury on the auditor's report and other evidence.

The findings of the auditor are summarized in the record, and are, in substance, as follows: In January, 1936, the intestate caused a savings bank deposit, which stood in the name of his deceased wife, to be transferred to the defendant and himself "as joint tenants -- either to draw -- survivor to take all." In the same month he caused another savings bank account, which stood in the name of his deceased wife, to be changed so that the caption read: "In account with Oct. 10, 1929 James E. Bronson, Jan. 16, 1936 or Florence E. Forbes. Payable to either or the survivor." In the same month the intestate opened a new account in a savings bank, "In account with James E. Bronson or Florence E. Forbes. Payable to either or survivor." On February 6, 1936, a new account was opened in another savings bank, "In account with -- joint account. To be drawn by either party or the survivor of them James E. Bronson or Florence E. Forbes." In each instance the defendant accompanied the intestate and signed a card at the bank. Except in one instance of a withdrawal of $100 made by the defendant at the request of the intestate, the latter made the withdrawals himself from the four banks, one hundred five in all, and used the sums withdrawn for his own living and household expenses. The defendant "never exercised any authority over the accounts to draw money as her own or for her own personal purposes" prior to the death of the intestate.

The transfers in question were made and the new accounts opened within two months after the death of the wife of the intestate. He wanted the defendant to continue as his housekeeper as long as he lived. She was willing provided he paid her $20 a week and made his property holdings joint with her, "so that upon his death she would become the sole owner of such balances as there would be then in the accounts and also of the real estate." The intestate agreed, and the transfers were made and the new accounts opened in pursuance of the agreement. At the time of the death of the intestate the balances in the accounts in question aggregated about $6,166. Shortly after his death the defendant withdrew all the deposits with the exception of about $343. The auditor further found that, in "making his real estate and bank accounts joint holdings of himself and the defendant," the intestate thought that he was making a prudent arrangement for his own future comfort and well being, and that "the conditions that the defendant required before she would commit herself to her side of the bargain were fully understood by him and met with his approval." The auditor further found that when the intestate made the bank accounts joint with the defendant "he intended to make a perfected present gift to the defendant of an interest in the accounts," and found for the defendant on each of the four counts of the declaration.

At the trial before the jury the defendant testified, in substance, that the agreement between her and the intestate was entered into shortly after the death of the wife of the intestate in December, 1935; that she agreed to stay with the intestate "as housekeeper or nurse as long as he lived, and take care of him sick or well, she to receive two dollars a day for her services as housekeeper or twenty dollars a week for services as a nurse during his lifetime, and upon his death if she survived him, she was to have all his property. . . . [that] he was willing to leave her everything and as a result of this understanding between them and intending to carry it out" the accounts were made joint "either to draw, survivor take all"; that "It was Mrs. Bronson's wish" that after her death the defendant should stay on, "and it was Mr. Bronson's wish and what remained if I outlived them was to come to me and was mine." The intestate and the defendant each had a key to "the tin...