Batal v. Buss

• Decision Date: 29 January 1936
• Citation: 293 Mass. 329,199 N.E. 750
• Parties: BATAL v. BUSS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

293 Mass. 329

199 N.E. 750

BATAL

v.BUSS et al.

Supreme Judicial Court of Massachusetts, Essex.

Jan. 29, 1936.

Petition in equity in the probate court by Michael J. Batal, administrator cum testamento annexo, against Mary E. Buss and another. From the decree, the petitioner appeals.

Affirmed.

Appeal from Probate Court, Essex County; Dow, Judge.

H. F. Collins, of Lawrence, for appellant.

J. P. Kane, of Lawrence, for appellees.

RUGG, Chief Justice.

This is a petition in equity in a probate court to establish title in the petitioner to a deposit in a savings bank and to require Mary E. Buss to deliver to the petitioner the deposit and deposit book. A decree was entered after hearing to the effect that the deposit book and deposit were the property of Mrs. Buss and dismissing the petition. The evidence is not reported The trial judge made a finding of material facts in substance as follows: The petitioner is the administrator with the will annexed of John S. Fraize, late of Andover. His will dated March 7, 1931, and admitted to probate June 27, 1934, provided in the first clause: ‘My daughter, Mary Fraize Buss, is to see that I get proper burial, pay for the same, also pay any debts which I may owe at the time of my death. The above is to be paid by her personally and not from my estate.’ In 1921 the testator gave a deposit in the Andover Savings Bank to Mrs. Buss, the validity of which is not now questioned. On September 15, 1922, the testator opened another account in his own name in the Andover Savings Bank numbered 35833. On January 23, 1932, he went to the bank alone and changed the account to the names of ‘John S. Fraize or Mary E. Buss, payable to either or survivor.’ Two days after doing this he ‘handed’ the deposit book to Mary E. Buss and said ‘I am giving you this book. After I am gone this money is yours.’ Mrs. Buss went to the bank two days later and the teller gave her an identification card and she signed it. The amount deposited on this book January 20, 1932, was $5,167.01. After delivering the deposit book to Mrs. Buss, the testator took it and kept it in his own possession until he went to the hospital a short time before he died. He withdrew money from the account thereafter for his living expenses and for other purposes as he wished. At first, and for a period of about a year to January 12, 1933, he made the withdrawals in person. After that date he would somethings give the deposit book to Mrs. Buss and tell her how much money to get, and she would go to the bank, withdraw the amount he desired and return the book with the money to him. At the time he changed the deposit into a joint account, he told the teller that Mary was a good girl and he wished her to have that money. He also ‘said something to the effect that he would like to have it so she could withdraw the money for him in case of sickness.’ A short time before he died the physical condition of the testator became so bad that he could not be cared for by his daughter or his sister in their homes and he was taken to a hospital. On the morning he left Mrs. Buss' house to go to the hospital he gave her the deposit book and it has been in her possession ever since. He siad nothing at this time when he handed her the book. After the testator's death Mrs. Buss paid the hospital bill, the funeral bill and the doctor's bill,...