Murray v. O'Hara

• Decision Date: 14 May 1935
• Citation: 195 N.E. 909,291 Mass. 75
• Parties: MURRAY v. O'HARA. O'HARA v. O'HARA et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

291 Mass. 75

195 N.E. 909

MURRAY v. O'HARA.

O'HARA v. O'HARA et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 14, 1935

Proceeding by Francis J. Murray, administrator de bonis non against Charles F. O'Hara, Jr., p. p. a. Petition in equity by Charles F. O'Hara, Jr., against Alice B O'Hara and others. From a decree entered in the probate court on an account filed by Alice B. O'Hara when administratrix of the estate of Charles F. O'Hara deceased, and from a final decree for petitioner in the petition in equity, Alice B. O'Hara takes separate appeals.

Affirmed.

Appeals from Probate Court, Suffolk County; Poland, Judge.

J. G. Crane, of Boston, for Alice B. O'Hara.

M. J. Doyle and M. J. McGlone, both of Boston, for Charles F. O'Hara, Jr.

LUMMUS, Justice.

Charles F. O'Hara, a letter carrier in the service of the United States, died November 7, 1932, leaving a widow Alice B. O'Hara, whom he had married on March 27, 1932. She became administratrix of his estate. He left also a minor son by an earlier marriage, Charles F. O'Hara, Jr. The probate court charged the administratrix with $905 refunded to her by the United States. On a petition in equity by the son, the probate court decreed that a valid trust in ten shares in Watertown Cooperative Bank had been orally created for the benefit of the son. Alice B. O'Hara appealed.

The Act of Congress of May 29, 1930 (46 U.S. Stat. at Large, p. 468, c. 349, U.S.C. Annotated, title 5, c. 14, §§ 691a-708a) provides for a contributory pension system. Three and one-half per cent of the salaries of certain employees in the classified civil service, including letter carriers, is withheld from their pay, and deposited in a fund for the payment of annuities and refunds under the act. Section 10 (5 USCA § 700a). If the employee receives in retirement annuities as much as he has contributed to the fund, he gets no refund. Section 10 (5 USCA § 700a), and § 12 (46 Stat. 476 [see 5 USCA § 702a]). But where, as happened in this case, ‘ an employee shall die without having attained eligibility for retirement or without having established a valid claim for annuity, the total amount of his deductions with interest thereon shall be paid to the legal representatives of such employees.’ Section 12(d) of the act (46 Stat. 476 [see 5 USCA § 702a]). The administratrix received the sum of $905 after her appointment, apparently under the authority of this section. By the terms of the statute it came to her in her representative capacity and as part of the assets of the estate. Section 12(f) of the act (46 Stat. 476 [see 5 USCA § 702a]), giving the commissioner of pensions discretion as to the payee of a refund when the employee is ‘ legally incompetent’ appears to have no application, for in this case the employee was not legally incompetent but dead. Even if that section authorized payment to Alice B. O'Hara as an individual, and the money was so paid, the money paid was in the nature of insurance in which the deceased had rights, and was not a gift. For this reason Corkum v. Clark, 263 Mass. 378, 386-389, 161 N.E. 912, does not apply. The decree charging the accountant with this sum as a part of the assets of the estate was right.

The cooperative bank shares were fully paid for by the deceased, and were taken in the name of ‘ Charles F. O'Hara, Tr. for Charles F. O'Hara, Jr.’ as early as October 27, 1927. The deceased kept the certificate for the shares in his possession, and received and used the dividends until his death. Sometime in 1928 the deceased took his son, Charles F. O'Hara, Jr., then a boy of twelve, to the Watertown Cooperative Bank, and showed him a paper which the son did not read but which the judge found was the certificate for the shares, and said ‘ That is for you.’ The judge found that the deceased ‘ then intended to make an immediately effective trust of the shares for the son's benefit.’ Later at various times the deceased said to the son that the ‘ money in the Watertown bank,’ meaning the shares, ‘ was the son's and that it was a fund to provide for his education and to send him to college.’ The son always understood and believed that the shares were his. The judge found that the deceased created a valid trust for the benefit of his son. The only fact reported from which a contrary intent on the part of the deceased might be inferred, was that after his second marriage he said to a relative that he ‘ would not change’ the shares as that was a fund for the son's education, which might imply a belief on the part of the deceased that he still had dominion over the shares.

It is so common for an owner of personalty to put the apparent title in his own name as trustee for another who furnishes no consideration, without any intent to create a genuine present interest in that other, or to surrender any part of his own dominion over the property, that the law is skeptical of the reality of a trust so declared. The mere statement that one is trustee for another does not define the nature and extent of the trust, nor show that if a trust is really contemplated it is lawful in purpose. Often the real intent is testamentary. Unless there is something more than the words that one is trustee for another, to show that a present creation of an equitable interest is intended and that the settlor has ceased to have full dominion, the nominal caste has no rights. Gerrish v. New Bedford Institution for Savings, 128 Mass. 159, 35 Am.Rep. 365; Sherman v. New Bedford Five Cents Savings Bank, 138 Mass. 581; Cleveland v. Hampden Savings Bank, 182 Mass. 110, 65 N.E. 27; Mulloy v. Charlestown Five Cents Savings Bank, 285 Mass. 101, 188 N.E. 608; Robertson v. Parker, 287 Mass. 351, 191 N.E. 645. The provisions of G. L. (Ter. Ed.) c. 168, § 34, when applicable, do not affect the rights of the parties between themselves. Alger v. North End Savings Bank, 146 Mass. 418, 421, 15 N.E. 916,4 Am.St.Rep. 331.

Even proof of an intent to create a present trust is not enough. It is true, that in creating a trust there is no absolute need of delivery either of...