Holyoke Nat. Bank v. Bailey

• Citation: 174 N.E. 230,273 Mass. 551
• Parties: HOLYOKE NAT. BANK et al. v. BAILEY et al.
• Decision Date: 07 January 1931
• Court: United States State Supreme Judicial Court of Massachusetts

273 Mass. 551

174 N.E. 230

HOLYOKE NAT. BANK et al.

v.BAILEY et al.

Supreme Judicial Court of Massachusetts, Hampden.

Jan. 7, 1931.

Appeal from Probate Court, Hampden County; John A. Denison, Judge.

Petition for instructions by the Holyoke National Bank and others, executors, in which Catharine F. Bailey the administratrix of the estate of Mary J. Cleary, deceased, was substituted as defendant. From a decree for the administratrix of Mary J. Cleary, Irene Cleary Stone and others appeal.

Affirmed.

Nathan P. Avery, Arthur S. Gaylord, and Frank E. Button, all of Holyoke, for appellants Irene Cleary Stone, Margaret Cleary, Mary E. Cleary, Ella B. Cleary, and Catherine Cleary Richard.

John P. Kirby, of Springfield, for Mary J. Cleary.

CROSBY, J.

This is a petition for instructions brought by the executors of the will of Michael Cleary to determine the ownership of certain deposits in five savings banks. The claimants are the decedent's wife, Mary J. Cleary, and his next of kin. Since the filing of this petition Mary J. Cleary, who was also a co-executor Institution for Savings was in the names of her estate has been substituted as a defendant.

The case is before us on an agreed statement of facts in which it appears that the deposit in the Springfield Five Cents Savings Bank was in the names of ‘Mary J. and Michael Cleary,’ the deposit in the Spring-field institution for Savings was in the names of ‘Michael and Mary Cleary,’ and the deposit in the Mechanics' Savings Bank was in the names of ‘Michael Cleary and Mary J. Cleary.’ In each case the deposit was payable to either husband or wife, and at the time it was made a deposit card was signed by both. Mary J. Cleary knew of the deposit and the form and manner in which it was made, and all deposits and withdrawals, with the exception of the final withdrawal closing the account, were by Michael Cleary.

The initial deposit in the Holyoke Savings Bank was entered on the pass book as follows: ‘Mary J. Cleary. Pay to Michael Cleary also.’ This deposit was made by Mrs. Cleary out of the proceeds derived from the sale of certain real estate which stood in her name. A deposit card was signed by both parties at the time of the deposit.

The initial deposit in the People's Savings Bank was made by Mary J. Cleary in 1903 and stood on the books of the bank and upon the pass book in her name alone until July 31, 1913. On that date she gave a written order to the bank to ‘Pay to Michael Cleary also,’ and thereafter the account was carried on the books of the bank, and on the pass book, as ‘Subject to withdrawal in whole or in part by either or the survivor of either.’ All subsequent additions and withdrawals, with the exception of the final withdrawal closing the account, were made by Michael, who had possession of the pass book after the deposit was made payable to him.

The five pass books were found in Michael Cleary's safe deposit box after his death. With the exception of the book of the People's Savings Bank, the facts with reference to which have been already stated, the books were at all times in his possession and control, and he alone had access to the safe deposit box. It is agreed that Marry J. Cleary is the person whose name appears with that of Michael.

Michael Cleary's will is dated October 31, 1927. In the tenth clause, which contains provisions in favor of his wife, appears the following: ‘Any savings bank books that may be in my name and in my wife's name as joint accounts are my own property and have not been given to my wife by me.’ At the hearing in the probate court no evidence of a material nature to supplement the agreed statement of facts was offered except on the question whether Mrs. Cleary waived whatever rights she had to the deposits by permitting the bank books to be inventoried as assets of her husband's estate and by acquiescing in the use of a part of the funds for payment of debts due from the estate. The judge of probate found that ‘she neither understood her rights nor possible duties in this connection and that her conduct was not such as to estop her from making a later claim.’ He further found that upon the death of Michael Cleary the deposits in each of the banks belonged to Mary Cleary by virtue of a completed contract between the depositor and the bank assented to in each instance by her, and that by the terms of the contract the balances belonged to her as the survivor. The case is here on appeal from a decree in favor of the administratrix of the estate of Mary J. Cleary.

The mere form in which a deposit is made or the failure of a claimant to sign a deposit slip is not conclusive upon the question of title to the fund. Eastman v. Woronoco Savings Bank, 136 Mass. 208;Booth v. Bristol County Savings Bank, 162 Mass. 455, 457, 38 N. E. 1120;Scrivens v. North Easton Savings Bank, 166 Mass. 255, 259, 44 N. E. 251;McKenna v. McKenna, 260 Mass. 481, 484, 157 N. E. 517;Kentfield v. Shelburne Falls Savings Bank, 267 Mass. --, 174 N. E. 229.

The fact that the husband retained possession of the deposit books and kept them in his safe deposit box is not decisive, but is a circumstance to be considered in determining whether there was a complete contract in joint ownership and was so intended. Attorney General V. Clark, 222 Mass. 291, 110 N. E. 299, L. R. A. 1916C, 679, Ann. Cas. 1917B, 119;Battles v. Millbury Savings Bank, 250 Mass. 180, 145 N. E. 55, and cases cited.

[3] The present case is to be decided upon the agreed facts and the reasonable inferences to be drawn therefrom. The original deposits made by the husband were all made in the names of both parties and each was payable to either or the...