Day Trust Co. v. Malden Sav. Bank

• Decision Date: 04 April 1952
• Citation: 105 N.E.2d 363,328 Mass. 576
• Parties: DAY TRUST CO. v. MALDEN SAV. BANK et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 363

105 N.E.2d 363

328 Mass. 576

DAY TRUST CO. v. MALDEN SAV. BANK et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Jan. 8, 1952.

Decided April 4, 1952.

T. Chase, Boston, for the petitioner.

C. R. Rosdahl, Malden, for respondent Kelliher, administrator.

Before QUA, C. J., and LUMMUS, RONAN, WILKINS and WILLIAMS, JJ.

WILLIAMS, Justice.

This is a petition by Day Trust Company, administrator with the will annexed of the estate of one Georgina B. West, for a declaration of right as to the ownership of two savings bank books of Malden Savings Bank and the deposits represented thereby, which books are now in the possession of the petitioner as administrator. The respondents are Malden Savings Bank, The First Parish in Malden, Universalist, Catherine A. West, and Yvonne Bruyninckx for whom, by reason of her death, Walter J. Kelliher, administrator of her estate, has been substituted. All the respondents other than Malden Savings Bank, against whom the petition has been taken for confessed, have filed answers, and the respondent Kelliher has filed a counterclaim in which he seeks a declaration as to his title as administrator to certain enumerated articles of personal property and asks for counsel fees and costs. After hearing, a decree was entered on February 1, 1951, declaring that one of the bank accounts numbered 194,332 is the property of the estate of Georgina B. West and that the other bank account numbered 67,350 is the property of the estate of Yvonne Bruyninckx. No reference was made in the decree to the counterclaim. On the counterclaim itself, however, there is an indorsement as of April 4, 1951, 'After hearing the within counterclaim is hereby dismissed.' This indorsement is the equivalent of a decree and is to be treated as such. The respondent administrator filed a claim of appeal from the first decree on February 19, 1951, and another claim of appeal from the second decree on April 18, 1951. A bill and a counterclaim are different causes of suit combined in one case and ordinarily a decree disposing of one of them is not a final decree. Blume v. Oil-O-Chron, Inc., 287 Mass. 52, 55, 191 N.E. 131; Bordonaro v. Vandenkerckhaven, 322 Mass. 278, 281, 76 N.E.2d 755. We think, however, that each of these decrees is to be considered final in the sense that it forms a proper basis for an appeal. See Check v. Kaplan, 280 Mass. 170, 176, 182 N.E. 305; Kingsley v. Fall River, 280 Mass. 395, 182 N.E. 841; G.L. (Ter.Ed.) c. 214, § 19. The judge of the Probate Court has made no findings of fact but has reported the evidence.

There was no error in the decree establishing the ownership of the two bank accounts. Account numbered 194,332 was formerly an account in the bank standing in the joint names of Georgina B. West and her husband, Alonzo A. West, to the sole ownership of which Georgina succeeded on the death of her husband in May, 1937. On May 13, 1938, the account was closed and Georgina opened a new account in the name of herself as trustee for Catherine A. West, one of the respondents. On December 15, 1944, Georgina changed the account into her name as 'Trustee for First Parish in Malden, Universalist, Georgina B. West Fund.' On November 7, 1947, Georgina changed the account into her name as 'Trustee for Yvonne Bruyninckx.' There was no evidence sufficient to justify a finding that notice of the establishment of the account under this last designation was given to Yvonne or that she knew of the account.

As to the account numbered 67,350, it was established as a joint account with right of survivorship on December 15, 1948, in the names of Georgina and Yvonne. Yvonne was not only told of it but signed the required signature slip and an order for the payment of dividends. No appeal has been taken from so much of the decree as establishes the title of the respondent administrator to this account, and it is referred to here only as showing that Yvonne benefited by the act of Georgina to the extent of the $9,292.50 which was in the account.

It is settled that to prove the creation of a valid trust, such as is contended by the respondent administrator to have been created in respect to account numbered 194,332, there must be notice to the cestui or to some person in his behalf and at least an implied acceptance by the cestui. O'Hara v. O'Hara, 291 Mass. 75, 78, 195 N.E. 909; Greeley v. Flynn, 310 Mass. 23, 27, 36 N.E.2d 394; See Rock v. Rock, 309 Mass. 44, 33 N.E.2d 973. The prior dealings of Georgina with this account show an intention on her part to retain control of the account as her own. While retaining physical control of the bank book and the account she voluntarily and without previous legal obligation declared herself in an informal manner trustee for the benefit of the claimant. See Aronian v. Asadoorian, 315 Mass. 274, 277, 52 N.E.2d 397. The judge was justified in finding that no trust for the benefit of Yvonne had thereby been created.

In the counterclaim, as above stated, a declaration is sought as to the ownership of certain articles of personal property which are...