Gibbons v. Gibbons

• Decision Date: 03 December 1936
• Citation: 296 Mass. 89,4 N.E.2d 1019
• Parties: GIBBONS v. GIBBONS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

296 Mass. 89
4 N.E.2d 1019

GIBBONS
v.
GIBBONS.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 3, 1936.

Suit in equity by Myles J. Gibbons against Annie Gibbons. From final and interlocutory decrees in favor of the defendant, the plaintiff appeals.

Reversed.

[4 N.E.2d 1019]

Appeal from Superior Court, Suffolk County; Walsh, Judge.
J. M. Graham, of Boston, for appellant.

J. F. McLaren, of Dorchester, for appellee.

LUMMUS, Justice.

The plaintiff appeals from a final decree dismissing his bill after the entry of an interlocutory decree sustaining a demurrer thereto. Although no appeal from the interlocutory decree was taken, its correctness is open for consideration upon the appeal from the final decree. G.L.(Ter.Ed.) c. 214, § 27. Nochemson v. Aronson, 279 Mass. 278, 280, 181 N.E. 188. See, also, Carleton & Hovey Co. v. Burns, 285 Mass. 479, 484, 189 N.E. 612;Canning's Case, 283 Mass. 196, 199, 186 N.E. 243;Arwshan v. Meshaka, 288 Mass. 31, 34, 192 N.E. 162.

The bill alleges that in 1930, at the solicitation of the defendant, his wife, the plaintiff caused savings accounts in two banks, which were his individual property, to be transferred from his name into the names of himself and his wife ‘payable to either or the survivor of either’ [sic]; that ‘said transfer so made was not made in any way as a gift or transfer of said monies represented by said deposits to his said wife, or with intent to pass title thereto to her, but solely under an agreement with his said wife that the same was to be and remain his property, with the right in him to make withdrawals thereon, and to protect her in the event of his decease’; and that thereafter he retained possession of the books representing said accounts and handled the accounts as his own until August 26, 1935, when his wife without his knowledge or consent took the books from his possession, withdrew substantially all the money on deposit with the intent to convert it to her own use, and refused to return it.

We need not consider the final proposed amendment to the bill which the judge refused to allow, for we think the bill as previously amended was good. We treat as waived the plaintiff's appeals from the denial of motions to amend, for such appeals seem to have no present importance

[4 N.E.2d 1020]

in view of the result to which we have come.

If there had existed an intent to make the wife one of the owners of the deposits in quasi joint tenancy (Marble v. Treasurer & Receiver General, 245 Mass. 504, 139 N.E....