Gerrish v. New Bedford Institution for Savings

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation128 Mass. 159
Decision Date10 January 1880
PartiesGeorge H. Gerrish & another, executors, v. New Bedford Institution for Savings

Argued October 29, 1879; October 22, 1878


New trial granted.

G Marston, for the plaintiffs.

E Robinson, for the claimants.


Colt J.

The executors of John B. Dornin seek to recover of the defendant bank money deposited by him. It appears that, after depositing in his own name and on his own account all that he was allowed to by the rules of the bank, he made three other deposits as trustee, one of which was in trust for his only son by name, and the others in trust for his two granddaughters by name. For these three deposits he took separate bank books containing entries of the same, which after his death were found among his effects, having never been delivered to the parties named or to any one else for them. The testator continued while living to collect, receipt for and use as his own, all dividends declared upon these deposits.

Under the provisions of the St. of 1876, c. 203, § 19, the son and grandchildren are made defendants in this action, and appear as claimants of the money.

A by-law of the bank provides that "no person shall receive any part of the principal or interest, without producing the original books, in order that such payments may be entered thereon." And another by-law declares that "any depositor, at the time of making his deposit, may designate the person for whose benefit the same is made, which shall be binding on his legal representatives." It is also now provided by statute that, when a deposit is made in trust, the name and residence of the person for whom it is made shall be disclosed, and the deposit shall be credited to the depositor, as trustee of such person; and when no other notice of the terms of the trust shall have been given in writing, the deposit or any part thereof may be paid, in the event of the death of the trustee, to the person for whom the same was made. St. 1876, c. 203, § 20.

At the trial, the claimants offered to prove, in addition to the facts stated, that the testator had said to each of them, at different times, "that he had put this money in the bank for them; that he wanted to draw the interest during his lifetime; and that after he was gone they were to have the money." And the question submitted by this report is whether, upon this evidence, the claimants would be entitled to the money in dispute; in other words, whether, upon this evidence, it can be properly found that the testator created himself trustee of the several funds for their use and benefit.

It is not enough that the testator manifested an intention to create the trust and make the gift at some future time. The act of transfer relied on must be fully and completely executed. When there is a formal instrument creating a trust in real estate, it is said that delivery of the writing is not in all cases necessary to its validity. It is a question of fact whether the trust has been perfectly created, and, upon that question, the delivery or non-delivery of a written declaration is a significant fact of greater or less weight according to circumstances and according to the nature of the writing relied on as a declaration of trust. If the alleged trust arises from a mere gift of personal property, delivery of the writing by which it is declared is perhaps of less importance, and the court will consider all the facts showing the intention of the donor. It must always appear, however, from the written or oral declarations, from the nature of the transaction, the relations of the parties and the purpose of the gift, that the fiduciary relation is completely established. Urann v. Coates , 109 Mass. 581.

There is in the case at bar no formal written declaration. But no particular form of words is required to create a trust in another, or to make the party himself a trustee for the benefit of another. It is enough for the latter purpose if it be unequivocally declared in writing, or orally if the property be personal, that it is held in trust for the person named. Ex parte Pye, 18 Ves. 140. Wheatley v. Purr, 1 Keen 551. M'Fadden v. Jenkyns, 1 Hare 458, and 1 Phillips 153. Milroy v. Lord, 4 De G., F. & J. 264. When the trust is thus created, it is effectual to transfer the beneficial interest, and operates as a gift perfected by delivery.

The decisions in both the English and American courts in these cases are not entirely uniform. The difficulty is in the application of the rule to the varying facts of each case. In Brabrook v. Boston Five Cents Savings Bank 104 Mass. 228, where one deposited his own money in his own name as trustee for another, but retained the bank book, and never gave to the alleged donee any notice of the deposit; and there was evidence that it was made in that mode in order to evade a by-law of the corporation, which prohibited so large a deposit in the name of one person, it was decided by this court that the facts agreed showed no intention on the part of the depositor to transfer to the plaintiff a present title to the property. The decision was upon a case stated, and much reliance was placed upon the fact that the whole transaction was a voluntary act, to which the plaintiff was in no way party or privy, and of which she had no notice. It was said that "even if...

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