Davis v. Ney

• Decision Date: 15 November 1878
• Citation: 125 Mass. 590
• Parties: William H. Davis, executor, v. Michael Ney
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

125 Mass. 590

William H. Davis, executor, v. Michael Ney

Supreme Court of Massachusetts

November 15, 1878

Argued November 21, 1877; November 22, 1877

Suffolk. Appeal from a decree of the Probate Court allowing the account of the executor of the last will of Mary Ney. The case was reserved by Morton, J., for the determination of the full court, on an agreed statement of facts, in substance as follows:

Previously to September 24, 1875, Mary Ney deposited in her own name, in the Union Institution for Savings in Boston, various sums of money, her sole property, at various times, which amounted on that day, to $ 5220, for which she held six separate bank books. On September 24, by an assignment not under seal, she assigned her deposits and delivered her bank books to George F. Emery, the treasurer of the bank. The only consideration for the assignment and delivery was that Emery was to draw for her whatever she wanted during her lifetime, and the balance, if any, left at her death, was to be paid by Emery to her son. Emery made no written agreement in reference to the matter, and her son was not informed of it until after her decease. Emery drew and paid to her, on account of the deposits, various sums at various times between September 24 1875, and October 4, 1876, amounting in the whole to $ 2034 including amounts of interest drawn as such. When these sums were drawn, her signature was required by Emery to show that he drew nothing for his own use, and Emery's signature was required by the bank. Sometimes, in Emery's absence pursuant to his directions to the bank clerks to allow her so to do, she drew money on account of the deposits.

Mary Ney died on October 4, 1876, leaving no debts; a husband, to whom she had been married before 1875; and one son, whom, by a will made without her husband's consent, and afterwards admitted to probate, she made her executor and sole legatee. Since her decease, Emery paid to her son the balance remaining of her deposits, amounting on September 17, 1877, to $ 3705; and subsequently her son filed his account as executor, not charging himself therewith, or with any part thereof. His account was allowed by the Probate Court, and the husband appealed.

If the court should be of opinion that the residue of the deposit belonged to the estate of the deceased, then the decree of the Probate Court was to be reversed, and the case remitted for the amendment of the executor's account accordingly; otherwise, the decree was to be affirmed.

Decree of Probate Court affirmed.

W. S. Stearns, for the appellant.

J. A. Maxwell, for the appellee.

OPINION

Endicott, J.

The delivery of the bank books to Emery, accompanied by an assignment, constituted a valid gift, and gave to him a complete title in the fund represented by the books. Foss v. Lowell Savings Bank, 111 Mass. 285. Kingman v. Perkins, 105 Mass. 111. Kimball v. Leland, 110 Mass. 325. In form the conveyance to Emery was absolute; but it appears from the statement of facts that it was accompanied by an oral agreement, between Mrs. Ney and Emery, that he should pay her during life such sums as she wanted, and that upon her death he should pay over the balance to her son. In execution of this agreement, he paid her a...