Cohen v. Newton Sav. Bank

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

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.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 to their testimony. See Trade Mutual Liability Ins. Co. v. Peters, 291 Mass. 79, 83, 84, 195 N.E. 900, and cases cited. But we are of opinion that those findings as well as the evidence did not justify the judge in his conclusions that the testator had no intention of creating a trust of the deposit in question and that it is assets of his estate.

While it is well established that trusts of personal property as distinguished from trusts of real estate may be created by parol, even in such cases delivery of the trust res is not essential to the validity of the trust. O'Hara v. O'Hara, 291 Mass. 75, 78,195 N.W. 909, and cases cited. In so far as the case of Mulloy v. Charlestown Five Cents Savings Bank, 285 Mass. 101, 188 N.E. 608, may be construed, in view of its facts, to be authority for the requirement of delivery of the trust res to effect a valid trust of personalty created by parol or by formal written declaration of trust, we do not follow it. See Buteau v. Lavalle, 284 Mass. 276, 187 N.E. 628; Scott, Trusts, § 58.1, note 5. And the fact that the donor under the terms of the trust retains possession and control of the trust res and...