Malone v. Walsh

• Decision Date: 03 February 1944
• Citation: 53 N.E.2d 126,315 Mass. 484
• Parties: MALONE v. WALSH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

315 Mass. 484

53 N.E.2d 126

MALONE

v.WALSH et al.

Supreme Judicial Court of Massachusetts, Essex.

Feb. 3, 1944.

Petition by John D. Malone, administrator, against Patrick Walsh and others to determine title to bank deposits and to recover them for the estate. From a decree for the administrator, the named defendant appeals.

Decree reversed, and petition dismissed.Appeal from Probate Court, Essex County; Phelan, Judge.

Before FIELD, C. J., and DONAHUE, LUMMUS, QUA, DOLAN, and RONAN, JJ.

J. J. Foley and J. D. Malone, both of Lynn, for petitioner.

E. S. Farmer and A. P. Teele, both of Boston, for respondents.

LUMMUS, Justice.

Mary A. Ryan, late of Lynn, died intestate on December 25, 1939, leaving her husband, Patrick J. Ryan, a sister, Catherine Reigle of Cleveland, Ohio, and three brothers, Patrick, Peter and James Walsh, of Lettermoghera in Ireland. The petitioner was appointed administrator of her estate. In 1939 Mary A. Ryan made three joint deposits in different savings banks in Massachusetts, substantially in the names of Mary A. Ryan and Patrick Walsh (her brother) payable to either or the survivor. This petition is brought under G.L. (Ter.Ed.) c. 215, § 6, as amended by St.1939, c. 194, § 2, to determine the title to these deposits and to recover them for the estate. Walsh v. Mullen, 314 Mass. 241, 50 N.E.2d 1. The probate judge found that Mary A. Ryan did not intend that the deposits should pass into the control of her brother Patrick or that any part of the funds should become his property until her death, and found that she did not intend to make a present completed gift. He entered a decree ordering the respondent savings banks to pay the funds, represented by the bank books standing in the joint names as hereinbefore described, to the petitioner. The respondent Patrick Walsh appealed. The judge found the material facts, and all the evidence is reported.

The law on this subject of joint deposits was stated in Goldston v. Randolph, 293 Mass. 253, 256, 257, 199 N.E. 896, 898, 103 A.L.R. 1117. It was there said that a change in a deposit to the joint account of the former owner and another “would operate as a present and complete gift in joint ownership if she [the former owner] clearly intended such a result.' * * * Such a present gift could be made even though the donor retained the exclusive right to the income of the deposit during her life. * * * A present gift of an interest in the deposit would be effected on the principle of Chippendale v. North Adams Savings Bank, 222 Mass. 499, 111 N.E. 371, and cases following it, by a contract to which the bank, the deceased and the [donee] were parties if the requisite intention on the part of the deceased existed. Delivery of the bank book would not be essential since the contract takes the place of the delivery ordinarily required. * * * Furthermore, a transfer of this nature is not a gift of the deposit as such, but rather a gift of the interest therein created by the contract. * * * And such a gift made in the life-time of the deceased of an interest in the deposit, though ripening into full ownership of the deposit by the [donee] on the death of the deceased, is not testamentary in character.' In Ball v. Forbes, 314 Mass. 200, 203, 204, 49 N.E.2d 898, 900, it was said: ‘It is settled that, while the contract of deposit is conclusive as between the parties and the bank, and that the contract with the bank takes the place of delivery ordinarily required, and that a present gift could thus be made if that result was intended even though the deceased retained control of the books evidencing the deposits, nevertheless, as between the survivor and the representative of the estate of the deceased, it is still open to the latter to show by attendant facts and circumstances that the deceased did not intend to make a present completed gift of a joint interest in the account, and that the mere form of the deposits does not settle the matter.’ These statements of the law are supported by other recent cases. Barnes v. Chandler, 277 Mass. 395, 178 N.E. 735;Batal v. Buss, 293 Mass. 329, 199 N.E. 750;Greeley v. O'Connor, 294 Mass. 527, 2 N.E.2d 471;Murphy v. Donovan, 295 Mass. 311, 3 N.E.2d 734;Gibbons v. Gibbons, 296 Mass. 89, 4 N.E.2d 1019;Murphy v. Nally, 301 Mass. 329, 17 N.E.2d 151; Castle v. Wightman, 303 Mass. 74, 20 N.E.2d 436;Sullivan V. Hudgins, 303 Mass. 442, 22 N.E.2d 43;Berry v. Kyes, 304 Mass. 56, 22 N.E.2d 622;MacLennan V. MacLennan, 311 Mass. 709, 42 N.E.2d 838;Colby v. Callahan, 311 Mass. 727, 42 N.E.2d 801. G.L.(Ter.Ed.) c. 167, § 14, as amended by St.1933, c. 334, § 1. Sawyer v. National Shawmut Bank, 306 Mass. 313, 28 N.E.2d 455.

There was evidence of the following facts. Mary A. Ryan was born in Ireland on June 24, 1871, and came to this country in 1900. On March 2, 1902, she married Patrick J. Ryan. Two children were born, who died in infancy. A third child, Veronica, was born in 1905 and died in February, 1914. In 1908 Mary A. Ryan and Veronica went to Ireland and remained nine months. Mary was displeased because her husband would not go with her, and also because he was working nights. She left her husband in 1914, when she sold his boats, dogs, hens, guns and fishing tackle without his knowledge. They went to living together again within a year, and parted again in 1915. She had him placed on probation in a District Court with an order for her support. They began to live together again in 1924, but lived together only a few weeks. Though living apart thereafter they were not unfriendly, and sometimes went to a theatre or a restaurant together or spent weekends together. The judge found as follows: ‘The decedent during her life-time was not a generous woman, but rather close and penurious, and of a suspicious nature. She insisted to her close associates and friends that she was without funds, and received favors and gratuities from these friends who supposed her to be living in poverty.’

The amount of the savings bank deposits in question is approximately $15,000. They were originally established in the name of Mary A. Ryan, the first in a Quincy bank in October, 1915, the second in a Charlestown bank on December 1, 1920, and the third in a Lynn bank on September 13, 1929. There were other deposits in other savings banks, but in May, 1935, they were withdrawn and the money was deposited in one of the three accounts just mentioned.

About April 23, 1935, Mary A. Ryan consulted a lawyer in Lynn about her savings bank deposits. She wished to make provision for the disposition of her money so that her husband would not get any of it. She showed the lawyer her will, but he told her that her husband could waive the will and take his statutory interest. She destroyed the will in the presence of the lawyer. Then she talked with the lawyer about making a trust agreement, and decided to make one. She told him exactly who were to be the beneficiaries. They were her brothers and sisters, the children of one of her sisters, some cousins, and charities. When the trust instrument was drawn, she decided not to sign it. This was on May 17, 1935. Finally she decided to transfer her deposits to herself and her sister Catherine Reigle jointly. The three deposits already described were transferred into new accounts in the names of Mary A. Ryan and Catherine Reigle, payable to either or the survivor. She told the lawyer that the money had been earned by her own labor. The lawyer drew, and she signed, instructions to Catherine Reigle as to the distribution of the money after her death. The beneficiaries named in these instructions were much the same, and the gifts to them were in much the same amounts, as in the proposed trust agreement. Catherine Reigle was included to the extent of $500 only, though her three brothers in Ireland were to receive $4,000 each. Relatives named Coyne were included for amounts not exceeding $500 each. These written instructions were given to Catherine Reigle on May 20, 1935. Mary A. Ryan retained possession of the bank books at all times, and made withdrawals from the accounts for her own purposes. No withdrawals were made by Catherine Reigle.

Beginning with the summer of 1938 the relations between Mary A. Ryan and Catherine Reigle became unfriendly. The former thought the latter too grasping for money. On December 5, 1938, Mary A. Ryan wrote to her brother Patrick Walsh in Ireland, whom she had not seen since 1908 but with whom she corresponded, saying among other things this: ‘Now Pat I am going to send papers to you to fill out and sign your name to them and whatever is left if anything should happen to me you would get whatever is left. There is Michael Coyne and John Coyne and Kate and her good for nothing crowd wishing me to pass away. * * * I know your prayers are helping me.’ (Spelling corrected.) The ‘papers' referred to evidently were cards for the transfer of the savings bank deposits into the names of Mary A. Ryan and Patrick Walsh jointly. She wrote Patrick that when the cards had been signed ‘then they cannot touch anything belonging to me if I died in [the] morning and the Coynes don't get even my old shoes. This doesn't mean anything more than a protection so safety first. Don't say anything to James or his family or to anyone. Keep this to yourself. This is just been for fear the Coynes might try to put me in a place where I could not hear from you...