McKenna v. McKenna

• Decision Date: 02 July 1927
• Citation: 260 Mass. 481,157 N.E. 517
• Parties: McKENNA et al. v. McKENNA et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

260 Mass. 481

157 N.E. 517

McKENNA et al.

v.McKENNA et al.

Supreme Judicial Court of Massachusetts, Middlesex.

July 2, 1927.

Report and Appeal from Probate Court, Middlesex County; John C. Leggat, Judge.

Action by William H. McKenna and others, executors, against Catherine A. McKenna and others, for instructions. From the decree rendered, defendants appeal, and case reported. Decree affirmed.

Harry W. Conant, of Boston, for appellants.

Ropes, Gray, Boyden & Perkins, of Boston (E. R. Dewing and H. E. Foley, both of Boston, of counsel), for respondents.

WAIT, J.

On October 16, 1923, George F. McKenna, who was then living with his daughter, Mrs. Breen, and apart from his wife, Catherine A. McKenna, consulted an attorney with regard to making a will. He asked how he could arrange so that certain amounts which he wished to give to five of his children could be free from any claim of his wife against his estate. He was advised that he might be able to do this by making deposits in the joint names of himself and each child, payable to the survivor, and was told that if he did this he could receive the interest and could use the amount deposited, but that each child would also be able to draw the amount of the deposit if he gave him or her the book. He made a will in which he gave his wife the share in his estate to which, as wife, she was entitled by statute, and he also executed five orders on the Somerville Trust Company, where he had a deposit, directing that company to pay to himself and a child named in each order a certain sum ‘as joint tenants payable to the survivor,’ and to deposit the amount in its savings department ‘in these two names.’ On October 18, 1923, he presented the five orders at the trust company, signed deposit cards for each child ‘by George F. McKenna, Trustee,’ and took away five deposit books for the appropriate deposits ‘in the name of [the child] or George F. McKenna,’ subject to the order of either, the balance at the death of either to belong to the survivor.

He took these books to Mrs. Breen's house where he showed them to her and told her what he had done. The books were at her house for several weeks until she asked her father to put them in his safe deposit. He told her, ‘Any time you children want this money you can get it, you can draw it.’ She had the keys to the safe deposit box.

He went to a hospital May 13, 1924, and remained till June 28. While there he was visited by his family, and about May 30, requested one of the five, his daughter Florence, to get from the deposit vault his bank books as he was disturbed about the amount of his estate and the provisions of his will. She obtained the five books and took them to him, but he explained it was not these books which he wanted, that ‘I want to add my own bank books and compare the amount with my personal account to see if it will cover the will.’ She, accordingly, got and gave to him the other books. She went with the books, including the five, to her father's attorney who had drawn the will and advised in regard to the deposits, and who, also, was named as one of the executors of the will. She talked about the books with him. He found the deposit cards in each book, still unsigned by the child in person. He got four of the children to sign the cards, the fifth signed later, took the books and cards to the trust company and received a paper from the treasurer reciting the receipt on May 31, 1924, from the attorney of five described deposit books in the children's names, ‘all in the name of George F. McKenna,’ and signed by the treasurer. The books remained with the company until after George F. McKenna's death, which occurred in the fall of 1924, when they were delivered to the attorney (now the executor of the will) and the receipt was taken up. The daughter, Mrs. Breen, was told by the father ‘the books were theirs, he would never have cause to use them’ and he also said ‘the keys were there.’ The daughter Florence was told by him that he had made out a book for her in a joint account ‘which she might have for her use when she needed it.’

The case is before us upon an appeal from a decree made upon a petition of the executors asking instructions whether to retain the books as assets of the estate or to deliver them to the surviving depositors,...