Mcevoy v. Boston Five Cents Sav. Bank
| Decision Date | 24 February 1909 |
| Citation | 201 Mass. 50,87 N.E. 465 |
| Parties | McEVOY v. BOSTON FIVE CENTS SAVINGS BANK et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
William Burns, for plaintiff.
Albert P. Worthen, for defendant Blume.
The question in this case is whether the assignment to a trustee made by Jane Lever, was a transfer of her property which divested her of her ownership and control during her lifetime, or whether it was in intention and legal effect a testamentary disposition of such of her money as should remain at her decease. The property included in the conveyance was merely the deposits in certain savings banks. The trustee testified that she told him she intended to dispose of the property after she was dead as well as while she was living, and that she intended the instrument in place of any will she might leave. There was in the deed an express reservation of a power of revocation. This in itself would not render it invalid if the instrument otherwise seemed intended to divest her of her absolute control of the property, as owner or as cestuique trust during her life, and to deprive her of the rights of a beneficiary who has a perfect power of disposition under the trust.
The trust in this case may be considered first in reference to its effect on the property during her life, and then in reference to its effect upon what might remain after her death. The first statement of the trust by the assignor in the assignment is in these words: 'Said trustee shall pay to me such moneys as I may demand of him at any time during my life, until I have used the amount conveyed to him by me by this deed.' This gave her the right to demand any part or the whole of the money at any time, for any use that she chose to make of it. It left her the sole beneficial owner of it, with an absolute power of disposition as long as she lived. As against her, therefore, the only effect of the instrument during her lifetime was to give the trustee a right to collect and hold the property until she should ask for it. Her rights as beneficial owner during her life were not limited in any material way. She could revoke the trust at any time, or she could demand and receive from the trustee all the money, at any time, under the trust and then do with it what she chose.
The assignment is very different from that in Kelley v Snow, 185 Mass. 288, 70 N.E. 89, in which the only right in the property reserved to...
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