Cohen v. Newton Sav. Bank

• Court: United States State Supreme Judicial Court of Massachusetts
• Citation: 67 N.E.2d 748,320 Mass. 90
• Parties: COHEN v. NEWTON SAV. BANK et al.
• Decision Date: 02 July 1946

320 Mass. 90
67 N.E.2d 748

COHEN
v.
NEWTON SAV. BANK et al.

Supreme Judicial Court of Massachusetts, Middlesex.

July 2, 1946.

Proceeding by Edward E. Cohen, executor, against Newton Savings Bank and Armenta Ernst to determine the ownership of a savings bank deposit. From the decree, Armenta Ernst appeals.

Reversed.

[67 N.E.2d 749]

Appeal and Report from Probate Court, Middlesex County; Monahan, judge.

Before FIELD, C. J., and LUMMUS, DOLAN, RONAN and WILKINS, JJ.

E. E. Cohen, of Boston, for plaintiff.

F. G. Lichtenstein, S. S. Epstein and G. A. Goldstein, all of Boston, for respondent.

DOLAN, Justice.

This is a petition to determine the ownership of a savings bank deposit in the Newton Savings Bank standing in the name of Lewis O. Locke in trust for Miss Armenta Ernst. The petitioner is the executor of the will of the depositor. The case comes before us on the appeal of Miss Ernst from the decree entered by the judge that the deposit is the property of the estate of the petitioner's testator.

The evidence is reported and the judge made a report of the material facts found by him. Material facts thus found or disclosed by the evidence may be summed up as follows: On July 11, 1934, the testator deposited $125 in the Newton Savings Bank, hereinafter referred to as the bank. The account was opened in the name of the testator in trust for Miss Ernst as set forth above. When the testator opened the account he signed the usual card of agreement to the by-laws and rules of the bank. The address of Miss Ernst was set out thereon as ‘24 Paul St. Newton Centre,’ and beneath the address appears the word ‘Stenographer.’ The testator's address appers thereon as ‘12 Roosevelt Rd., N. C.’ On the back of the card the following appears: ‘This account I hold in trust, to control and dispose of as I see fit during my lifetime, but on my death to pay to the beneficiary the full amount then standing to the credit of this account. Lewis O. Locke.’ After opening the account the testator made many deposits to its credit and many withdrawals. There was evidence tending to show that the testator who was seventy-three years of age at the time of his death in 1943, and Miss Ernst had been friends since 1921; that they went to the theatre and to dining places together; that the testator told Miss Ernst that he had put some money away for her in a bank in his name as trustee, and that at any time that she wanted it it was hers; and that on another occasion when she was planning a trip to California he suggested that she use the money for her trip. The judge found, however, that no delivery of the book of deposit was ever made to Miss Ernst, that she never had knowledge of the existence of the account until after the death of the testator, that the testator intended to retain and did retain full dominion over the account until his death, and that he never gave notice to Miss Ernst nor to anyone representing her that the account was her property; and further found ‘as a fact that the testator did not intend to create a present interest in the account to the respondent Ernst.’ With respect to all of these findings except the last one, we cannot say that the judge was plainly wrong, since he saw and heard the witnesses and had a superior opportunity to judge of the weight to be given

[67 N.E.2d 750]

to their testimony. See Trade Mutual Liability Ins. Co. v. Peters, 291 Mass. 79, 83, 84, 195 N.E. 900, and cases cited....