Monaghan v. Monaghan

• Decision Date: 04 November 1946
• Citation: 69 N.E.2d 476,320 Mass. 367
• Parties: MONAGHAN v. MONAGHAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

320 Mass. 367

69 N.E.2d 476

MONAGHAN

v.MONAGHAN.

Supreme Judicial Court of Massachusetts, Middlesex.

Nov. 4, 1946.

Action of contract by Hugh H. Monaghan, executor, against Edwin J. Monaghan to recover the amount of a deposit in a bank which stood in name of plaintiff's testator at time of his death. From the allowance of plaintiff's motion for judgment in his favor on report of auditor, defendant appeals.

Affirmed.Appeal from Superior Court, Middlesex County; Cabot, Judge.

Before FIELD, C. J., and DOLAN, RONAN, WILKINS, and SPALDING, JJ.

R. Wait, of Boston, for plaintiff.

W. R. Bigelow, of Boston, for defendant.

DOLAN, Justice.

This is an action of contract to recover the amount of a deposit in the Natick Five Cents Savings Bank which stood in the name of the plaintiff's testator at the time of his death. The case was referred to an auditor, and it was agreed that his findings of fact should be final. Upon consideration of the auditor's report the judge denied the defendant's motion for judgment for him on the auditor's report and allowed the plaintiff's motion for judgment for him, and the defendant appealed. See G.L.(Ter.Ed.) c. 231, § 96. The case is properly before us on the defendant's appeal from the allowance of the plaintiff's motion for judgment in his favor, which was equivalent to an order for judgment for him and decisive of the case. Lawrence v. Old Silver Beach, Inc., 303 Mass. 377, 378, 21 N.E.2d 956.

Material facts are these: During the summer of 1944, the decedent signed an order to the Natick Five Cents Savings Bank to pay to the defendant or his order the whole amount of deposits and dividends due him ‘as per Book No. 55215.’ The order was signed in the decedent's boathouse in Wellesley and was witnessed by one Griffin, to whom the decedent said that he was not very well and might not live long, and that he wanted Ed (the defendant and brother of the decedent) to have ‘this money.’ The decedent had a safe deposit box to which he and the defendant's son George had had joint access since September 29, 1932. The defendant had never been authorized to have access to the box. At some time in July or August, 1944, the decedent placed the order and book of deposit in the safe deposit box. He did not inform either George or the defendant of having done so. George did not see the order or the book until October 13, 1944. The decedent had died on October 8, 1944. On October 13, 1944, George went to the safe deposit box to see if he could find a will. He found there the book of deposit and order involved, and handed them to his father, the defendant. On October 19, 1944, the wife of the defendant took the book and order to the savings bank, and had the amount due thereon transferred to a new account in the name of the defendant. Later upon an order of the defendant the account was transferred into a joint account of the defendant and his wife who made withdrawals of $1,500 and $200, leaving a balance of $1,443.15 at the time of the service of the writ in the present action. The defendant had never seen either the deposit book or the order before his son delivered them to him; but in January, 1943, in a conversation with the decedent concerning family illnesses and financial problems, the decedent said in substance, ‘If anything happens to me, you will find an account made out to you in the Natick Five Cents Savings Bank and I have left a check to you [in the boathouse] for my burial.’ Based upon the foregoing facts the auditor found in conclusion that the decedent ‘at the time of signing the order and at the time of placing it with the book in the same deposit...