Bone v. Holmes

• Decision Date: 15 May 1907
• Citation: 195 Mass. 495,81 N.E. 290
• Parties: BONE HOLMES SAME v. HOLMES. HOLMES SAME v. BOSTON FIVE CENTS SAVINGS BANK et al. HOLMES SAME v. BONE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

195 Mass. 495

81 N.E. 290

BONE HOLMES SAME v. HOLMES. HOLMES SAME v. BOSTON FIVE CENTS SAVINGS BANK et al. HOLMES SAME v. BONE.

Supreme Judicial Court of Massachusetts, Suffolk.

May 15, 1907

COUNSEL

Clifton L. Bremer, for Bone.

W. W Vaughan and H. G. Vaughan, for Holmes.

OPINION

SHELDON J.

We are of opinion there was evidence which warranted the finding in each of these cases.

1. There was evidence that Mrs. Allen executed a formal assignment of the Tyler Street Day Nursery bond to Miss Bone and delivered the bond and the assignment to her; that it was then put in Mrs. Allen's box in a safety vault for safe-keeping, marked, 'This is the property of Alice H. Bone, and is here for safe-keeping;' that Miss Bone afterwards took a box of her own, and put the bond in that for a time, until she gave up that box and put the bond back in Mrs. Allen's box, where it remained until the latter's death. On this evidence the court had a right to find that there had been a sufficient delivery of the bond to Miss Bone, with intent to pass the title. The fact that the bond was found in Mrs. Allen's box after her death was of course to be considered; but it was not necessarily decisive. Scrivens v. North Easton Savings Bank, 166 Mass. 255, 44 N.E. 251. The same may be said of the fact that the assignment had not been presented to the obligor or the bond transferred upon its books. Andrews v. Worcester & Nashua R. R., 159 Mass. 69, 33 N.E. 1109. And the talk at the time of the delivery of the bond and assignment to Miss Bone did not amount to a reservation of the interest during Mrs. Allen's life, nor would such a reservation have conclusively avoided the gift. Stone v. Hackett, 12 Gray, 227; Davis v. Ney, 125 Mass. 590, 28 Am. Rep. 272; Tyndale v. Randall, 154 Mass. 103, 27 N.E. 882; Bromley v. Mitchell, 155 Mass. 509, 30 N.E. 83.

As to the bond of the Bangor & Aroostook Railroad Company, there was evidence that Mrs. Allen, some years before her death, handed it to Miss Bone, saying, 'This is yours, but if you will cut off the coupons and give them to me during my life.' This warranted a finding that the property passed absolutely to the donee, and such a reservation of the interest for the life of the donor would not prevent the gift from taking effect. See the cases cited above. The donor trusted the donee to give back the coupons as they should become due. Nor did the testimony as to the subsequent custody of the bond or the direction afterwards written by Mrs. Allen upon the envelope containing it necessarily show that there had been no previous delivery of the bond and vesting of the title, subject to a qualified reservation of the interest, in the donor. Kendrick v. Ray, 173 Mass. 305, 308, 309, 53 N.E. 823, 73 Am. St. Rep. 289; Chase v. Perley, 148 Mass. 289, 19 N.E. 398; Scott v. Berkshire County Savings Bank, 140 Mass. 157, 2 N.E. 925. We do not mean to say that this evidence, under the circumstances of the case, was inadmissible, or that with the other evidence it might not have warranted a different finding from that which was made; but we cannot pass upon the weight of the evidence.

2. As to the 60 shares of Sugar preferred stock which are the subject of the second suit, the facts which might be found do not differ essentially from those which have been stated in considering the first suit. The stock was not transferred on the books of the corporation, and it was intended that the dividends should be paid to Mrs. Allen for her life. But we have already seen that these circumstances are not conclusive against Miss Bone's contention that as between the parties there was an absolute transfer of the title to her.

The executor relied strongly on the evidence that Mrs. Allen expressed at one time an unwillingness to transfer and deliver the stock during her own life to Miss Bone, but wished to retain it in her own control, and allow the title to pass only after her own death, which would make the inference of a present gift taking effect during the life of the donor impossible. Duryea v. Harvey, 183 Mass 429, 433 ^[1]; Coleman v. Parker, 114 Mass. 30, 32; Stone v. Hackett, 12 Gray, 227. But there was also evidence that subsequently Mrs. Allen...