Mulloy v. Charlestown Five Cents Sav. Bakk

Decision Date02 January 1934
PartiesMULLOY v. CHARLESTOWN FIVE CENTS SAV. BAKK et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Appeal from Municipal Court of Boston, Appellate Division; F. Delano Putnam, Special Judge.

Action of contract by Edward F. Mulloy against the Charlestown Five Cents Savings Bank, in which another was summoned in as claimant defendant. Judgment for plaintiff as to the first count, and for claimant defendant as to the second count. From an order of the Appellate Division dismissing a report as to the second count, plaintiff appeals.

Affirmed.D. L. Allison and E. V. Keating, both of Boston, for appellant.

E. J. Flavin, of Boston, for appellees.

WAIT, Justice.

The plaintiff declared in two counts for money had and received, to recover money deposited in the defendant bank by one Mary Kiernan. On the bank's answer in interpleader that the deposits were claimed by a son of Mary Kiernan, administrator of her estate, and that it was a mere stakeholder ready to pay to the person entitled, the court summoned in the administrator as a claimant defendant. The trial judge found for the plaintiff for the first deposit; and for the administrator for the second. No question arises on the first count. The Appellate Division of the Municipal Court of the City of Boston ordered a report dismissed, and the plaintiff's appeal brings the matter before us.

The report set forth the judge's findings of fact, here material, in substance as follows: On April 5, 1928, Mary Kiernan opened an account with the savings bank in the name of Mary Kiernan, trustee for Edward F. Mulloy and deposited $1,000. Mulloy was her brother. He had expressed dissatisfaction because he had not been told that their deceased sister, Margaret, had been making a will, by which, apparently, Mary had profited and he had not. To assuage him, Mary Kiernan told him she would open a trust account for him in $1,000. In April, 1928, she told him she had done so, and that she intended the deposit in her name as trustee for him to be his when she died. At her request he went to the bank and there signed a paper, a signature card and the by-laws of the bank. Afterwards, she frequently asked him to go to the bank and have the account put in his name; but he always replied, ‘it is all right as it is,’ and did no more about it. The pass book has always been held at the bank for safe keeping, at Mary Kiernan's direction. Nothing has ever been withdrawn. Interest was added as it accrued. Mulloy, on cross-examination, testified that he had supposed that until she died she might draw on the deposit. There was evidence that Mary Kiernan had said that her sister Meg had stated that she was not satisfied with her will, and had obtained Mary's promise to give the brother $1,000 before she died; and Mary Kiernan had also said: ‘I put a thousand dollars in Ed's name in the Charlestown Five Cents Savings Bank after she died.’ An official of the bank explained to her about the accounts, when Mary Kiernan made the deposit. The deposit claimed in the first count was made as a joint account of Mary and her brother.

The judge found ‘that Mrs. Kiernan's original intention was to set aside $1,000, which Mulloy was to get at her death, but after this account was opened she changed her mind and wanted him to have it during her life, although she took no steps to transfer the account into his name alone’; and that the deposit was the property of the claimant. He refused certain instructions requested by the plaintiff, who now contends that there was error in the refusals and in the finding of fact above stated.

The essential question is whether title to the deposit passed to the plaintiff. Our law is settled that apart from conveyance by deed title to personal property does not pass by gift unless the donor makes an actual or symbolic delivery of the property to the donee. Full intent to give is not enough. Cardoza v. Leveroni, 233 Mass. 310, 313, 123 N. E. 672;Perry v. Leveroni, 252 Mass. 390, 147 N. E. 826;Brine v. Parker, 271 Mass. 86, 171 N. E. 324;Brodrick v. O'Connor, 271 Mass. 240, 171 N. E. 479;Foley v. Coan, 272 Mass. 207, 172 N. E. 74;Robinson v. Pero, 272 Mass. 482, 172 N. E. 599. Whether there was such delivery was matter of fact. The judge's decision must stand if the evidence can support it. Moss v. Old Colony Trust Co., 246 Mass. 139, 143, 140 N. E. 803;Robinson v. Pero, 272 Mass. 482, ...

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25 cases
  • Cartall v. St. Louis Union Trust Co., 37102 and 37103.
    • United States
    • United States State Supreme Court of Missouri
    • July 25, 1941
    ...v. Weaver, 242 Mass. 331, 136 N.E. 166; Robertson v. Parker, 287 Mass. 351, 199 N.E. 645; Mulloy v. Charlestown Five Cent Saving Bank, 285 Mass. 101, 188 N.E. 608; Moore v. Lawton, 147 Md. 244, 127 Atl. 756; Ariett v. Osage County Bank, 120 Kan. 286, 242 Pac. 1018; Elliot v. Gordon, 70 Fed.......
  • Cartall v. St. Louis Union Trust Co.
    • United States
    • United States State Supreme Court of Missouri
    • July 25, 1941
    ......Parker, 287 Mass. 351, 199. N.E. 645; Mulloy v. Charlestown Five Cent Saving. Bank, 285 ... Mo. 388] 6]; Mulloy v. Charlestown Five Cents Sav. Bk., 285 Mass. 101, 105, 188 N.E. 608, ......
  • State ex rel. Union Nat. Bank of Springfield v. Blair
    • United States
    • United States State Supreme Court of Missouri
    • November 12, 1942
    ...... McKenna, 168 Mo.App. 254, 153 S.W. 521; Mulloy v. Charlestown Five Cents Sav. Bk., 285 Mass. ......
  • State ex rel. Union Natl. Bank v. Blair
    • United States
    • United States State Supreme Court of Missouri
    • November 12, 1942
    ...739, discussing the Missouri cases and law; Citizens Natl. Bk. v. McKenna, 168 Mo. App. 254, 153 S.W. 521; Mulloy v. Charlestown Five Cents Sav. Bk., 285 Mass. 101, 188 N.E. 608. (12) Donors, not the courts must create voluntary parol trusts the same as testators must make their wills and l......
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