Drain v. Brookline Sav. Bank

• Decision Date: 21 May 1951
• Parties: DRAIN v. BROOKLINE SAV. BANK et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 160

99 N.E.2d 160

327 Mass. 435

DRAIN v. BROOKLINE SAV. BANK et al.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Nov. 10, 1950.

Decided May 21, 1951.

G. R. Walters, Brookline, for plaintiff.

H. E. Kiley, Peabody, for defendant.

Before QUA, C. J., and LUMMUS, WILKINS and COUNIHAN, JJ.

COUNIHAN, Justice.

This is an action of contract by writ dated April 30, 1948, brought in a District Court by Mary A. Sullivan, an insane person, against the Brookline Savings Bank to recover the amount of a 'joint and survivor account' in the bank, standing in the names of Mary A. Sullivan and Daniel F. Carney. The bank interpleaded and Carney was made a party defendant. G.L.(Ter.Ed.) c. 168, § 36. After trial, on January 19, 1949, the judge found for the bank and made no express finding as to Carney. During the trial the plaintiff filed sixteen requests for rulings, most of which were denied by the judge. She also objected to the admission of certain questions to the defendant Carney. On report, the Appellate Division on May 3, 1950, found no prejudicial error and entered an order dismissing the report. On February 6, 1950, a suggestion of death of Mary A. Sullivan was filed, and on May 9, 1950, Helen D. Drain, special administratrix of her estate, was admitted as plaintiff and appealed from the order of the Appellate Division.

The report discloses that Mary A. Sullivan, a single woman, in February, 1946, had an account in the defendant bank in the joint names of herself and Mary G. Carney, or the survivor, in the sum of about $2,000. Mary G. Carney, a sister of Daniel F. Carney, died on February 16, 1946, and Miss Sullivan met Daniel at the funeral. The only evidence as to the circumstances of the transfer of this account comes from the testimony of Carney. He testified that at the funeral Miss Sullivan told him 'that inasmuch as his sister had died, she wanted someone to take care of her and wanted to open a joint account with him. She had about $1,000 in the Union Savings Bank and about $2,000 in the Brookline Savings Bank * * * that the $1,000 was for burial and other expenses and the other $2,000 was for his services.' At another time he testified that the purpose she expressed in establishing the joint account with him at the Brookline Savings Bank 'was for taking care of her.' He further testified that on April 6, 1946, the day the joint account in the Brookline Savings Bank was opened, he went with Miss Sullivan to that bank; that she obtained the new book and passed it to him for his examination; and that he looked at it, held it in his hand while he signed signature cards, and then returned the book to her. At no other time was the bank book in his possession. When Miss Sullivan was committed to the Boston State Hospital on February 7, 1947, the bank book was in her possession. (Apparently about April 6, 1946, the account in the Union Savings Bank was transferred in the same manner.) No question as to the competency of Miss Sullivan at the time of these transfers was raised. After her commitment to the Boston State Hospital, a temporary guardian was appointed for her by the Probate Court for the county of Suffolk.

At the time of her appointment the temporary guardian came into possession of the following property of her ward: (1) an annuity contract of an insurance company paying the ward $113.28 monthly for her life; (2) eight checks for $113.28 each for earlier annuity payments; (3) the bank book of the Union Savings Bank, standing in the joint names of Mary A. Sullivan and Daniel F. Carney, or the survivor; and (4) the bank book in the Brookline Savings Bank representing the account which is the subject to this action.

In an action brought in the Municipal Court of the City of Boston in which Carney was also a defendant, the award recovered the amount of the deposit in the Union Savings Bank and the judge filed a 'memorandum' in disposing of the defendant Carney's requests for rulings.

At the time this present action was brought the only expense of the ward was a payment of $10 a week to the Boston State Hospital where she was confined.

About March 1, 1948, the temporary guardian drew an order on the Brookline Savings Bank in the sum of $554.29 in favor of the department of mental health for the board of the ward at the hospital. The bank refused to honor this draft.

In his 'Finding' the judge states, 'There was testimony by Mr. Carney, the substance of which was that she wanted the Union account jointly with him for her funeral and other bills; the Brookline account was to be used, if necessary, for her support and anything that was left, he was to have.' The judge also made an express finding 'that she had, although retaining the right of withdrawal, made a completed gift of the book in question to Mr. Carney, accompanied by a request that the funds be used by him for her support if necessary and there was a completed contract between Miss Sullivan, Miss [sic] Carney and the bank.'

The judge further found that there was no evidence offered as to why the temporary guardian desired the withdrawal of $554.29 at a time when she had ample funds in her hands for current needs of the ward, but if 'there should come a time when this account is necessary for' the support of the ward, 'a different set of facts would be presented from those with which this case deals.'

The plaintiff argues that on the evidence the judge was not warranted in finding that a present completed gift of the 'account in defendant bank' was made to Carney and that she properly raised this question by her requests for rulings. In her brief she admits that she does not argue all of her grievances as set forth in the report, but she asserts that she relies upon them and intends that they be incorporated in her brief by reference. Such a statement is of no effect, for if exceptions are not specifically argued in a brief they may be treated as waived. Barnes v. City of Springfield, 268 Mass. 497, 504, 168 N.E. 78; Mullen v. Sewer Commissioners of Milton, 280 Mass. 531, 537, 182 N.E. 641; Universal Adjustment Corp. v. Midland Bank, Ltd., 281 Mass. 303, 328, 184 N.E. 152, 87 A.L.R. 1407: Richmond v. Stanzler, 327 Mass. 62, 97 N.E.2d 200. The objections to the admission of certain evidence were not argued by the plaintiff in her brief and are therefore treated as waived.

The plaintiff argues that the finding of the judge of the Municipal Court of the City of Boston in her action against the Union Savings Bank in which Carney was also a defendant is controlling and required the judge in this action to find for her. This cannot be supported because it has been said, 'In a subsequent action between the same parties on a different cause of action, an estoppel by judgment applies only to all facts which were actually put in issue in the prior action.' Wishnewsky v. Town of Saugus, 325 Mass. 191, 194-195 89 N.E.2d...