Pierce v. Boston Five Cents Savings Bank

• Citation: 129 Mass. 425
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 16 September 1880
• Parties: William L. G. Pierce, administrator, v. Boston Five Cents Savings Bank. Elizabeth A. Turner v. Rufus Estabrook, administrator, & others

129 Mass. 425

William L. G. Pierce, administrator, v. Boston Five Cents Savings Bank.

Elizabeth A. Turner v. Rufus Estabrook, administrator, & others

Supreme Court of Massachusetts

September 16, 1880

Argued March 15, 1880; November 21, 1879 [Syllabus Material] [Syllabus Material] [Syllabus Material]

Suffolk. The first case was an action of contract brought by Martin A. Munroe, in the name of the administrator of the estate of William Green, Jr., to recover deposits in the defendant bank made by Green to the amount of $ 600. Writ dated June 19, 1877. The bank defended the action at the request of the administrator. Trial in the Superior Court, without a jury, before Gardner, J., who allowed a bill of exceptions, in substance as follows:

There was evidence tending to show that the intestate delivered the bank book, issued to him by the defendant, to Munroe, for his own use, as a donatio mortis causa, but there was no assignment of the bank book by Green. Upon making the first deposit, Green subscribed to the by-laws of the defendant bank. Printed on the outside of the bank book was the direction, "If you lose this book, give immediate information to the treasurer;" and inside, among the printed by-laws, were the following: "Art. 8. It shall be the duty of the treasurer to enter all deposits and payments made to depositors in the books of the bank, and a duplicate of such entry in the book of the depositor, which shall be his voucher and the evidence of the amount deposited." "Art. 9. No person shall receive any part of his principal or interest without producing the original book."

It appeared that the estate of Green, including said deposits, amounted to $ 1242.87, and that the debts were $ 25.40, of which last sum $ 25 was for the services of the doctor during Green's last illness, and forty cents for some tobacco; both of which items had been paid, and that the funeral and other expenses did not exceed $ 150, unless the alleged donee, Munroe, was to be considered a creditor. Munroe testified that he had a legal claim against Green's estate of $ 1300, for board furnished, and some expenses paid for Green; and on January 20, 1879, he commenced a suit against the administrator to recover said amount, which suit is now pending. Pierce was appointed administrator of Green's estate on January 29, 1877, and the estate was represented insolvent in October, 1879, and commissioners were appointed by the Probate Court.

The defendant requested the judge to rule, as matter of law, as follows: "1. The delivery of the bank book to Munroe by the deceased in his last illness, even if made when he did not expect to recover, and if intended by the deceased as a donatio mortis causa, did not pass to Munroe any right to the deposit in the bank. 2. It appearing, from the testimony in the case, that the only property left by the deceased, including the bank deposit, amounted to $ 1242.87, and that the deceased, at the time of the alleged gift, owed Munroe $ 1300 in addition to debts to other persons; that the deceased was insolvent at the time of the alleged gift, and of his death, and the gift of the bank deposit, if good in other respects, as donatio mortis causa was void, because in fraud of creditors."

The judge declined so to rule, and found for the plaintiff for the amount of the deposits and the interest accumulated thereon, according to the terms of the deposits, down to the date of the writ, with simple interest at six per cent from the date of the writ, against the objection of the defendant, who contended that by the terms of the deposit the interest from the date of the writ should be, if anything, only at the rate of two per cent semiannually, being the rate payable according to the terms of the contract of deposit.

To the above refusals to rule, and to the allowance of interest at six per cent from the date of the writ, the defendant alleged exceptions.

The second case was a bill of interpleader, brought against Rufus Estabrook, administrator of the estate of Martha S. Howe, Samuel T. King, Horace H. King, Francis H. King, Persis E. King, Mary R. Rolfe and Persis F. Chase, to determine to whom the plaintiff should deliver certain moneys and bank books. The case was heard on the pleadings and proofs before Endicott, J., who reported it for the determination of the full court, in substance as follows:

At the hearing, it appeared that Howe, the intestate, an unmarried woman, had worked in the millinery business, under the plaintiff's supervision, for two years and a half prior to January 1879, when she ceased labor, on account of ill health; that on March 16, 1879, the plaintiff, at Howe's request, went to her lodging-room to see her, and found that she had an ovarian tumor, and was about to go to the hospital to have an operation performed, and then feared she would never recover, and told the plaintiff that she had some savings-bank books and $ 250 in money, which she wished the plaintiff to take in her charge. The plaintiff asked, "What do you want done with them, in case anything happens to you?" to which Howe replied, "I will tell you," and proceeded to say that she wished to then give the bank books and money to the plaintiff. The plaintiff refused to receive them in that way, and with Howe's verbal directions merely, and thereupon told Howe that, unless she would carefully seal up with wax the money and bank books, and would also write out her directions as to their disposal, the plaintiff would have nothing to do with them. Howe then replied that she would do as the plaintiff required with the bank books and $ 250 in money, besides which she stated that she had $ 50 which she would take to the hospital with her, and that, if she needed any more money, the plaintiff could bring it to her while in the hospital; but if she had no further need, it would be all there, together with the savings-bank books. The plaintiff then said, "Why do you give these things to me, rather than to some relative?" and Howe answered, "Because you are the only person I can trust to do with my things exactly as I have said." No question was made but that the gifts to the plaintiff were made in contemplation of death.

On March 17, 1879, the plaintiff went to the house where Howe lodged, and she then and there gave to the plaintiff a package sealed with wax, saying, "There are all the things we talked about yesterday, sealed exactly as you told me, with the directions what to do with them." The plaintiff took the package, and then rode in a carriage with Howe to the hospital. While in the carriage Howe said to the plaintiff, "Now you will take care of everything for me, won't you?" and when the plaintiff inquired what she meant by everything, Howe replied, "Why, I mean everything, -- all my things, as I have said." At the hospital Howe remained four days, when she died. While at the hospital, the plaintiff visited her every day. At one of these visits, Howe showed the plaintiff the keys to two trunks at her lodging-rooms, and to a trunk in her room at the hospital, and to her watch, and told the plaintiff which key was for each trunk, and which was for the watch.

After Howe's death, the plaintiff took possession of these three trunks, which contained wearing-apparel, and also of a gold watch and $ 64 in money which Howe had with her at the hospital when she died. The plaintiff then opened the sealed package given to her on March 17, and thereafter kept in her possession, and found therein $ 250 in money, and four books of deposit in different savings banks in Boston, showing deposits by Howe in these banks to the amount of $ 2101.16, together with an envelope sealed with wax, and superscribed, "In case of death, the enclosed requests are to be carried out;" which envelope contained a paper on which was written and subscribed in Howe's handwriting, as follows: "If I never recover, I wish to be buried beside my dear father and mother in South Natick, with everything suitable; and whatever is left, besides paying all bills and expenses, to be divided between Mrs. H. P. Rolfe, of Concord, N. H., Mrs. Dexter Chase, of Lancaster, N. H., and Persis and Horace King, Samuel King, of Boston, also Francis King, also of Boston. M. S. Howe."

Up to this time, the plaintiff did not know the amount of the bank books in the sealed package, or the banks in which they were, but had been told by Howe the amount of the money therein. There was no assignment of the bank books other than as above stated. The bank books and money contained in said package are claimed on the one hand by the administrator, and on the other by the persons named in the writing made by Howe. The title of the administrator to the trunks, with their contents, the watch and $ 64 in money, was not disputed.

The case was reserved, upon the question whether there was a valid donatio mortis causa of the savings-bank deposits, and of the $ 250 in money, or of either; such decree to be entered as law and justice might require.

Exceptions Overruled.

C. F. Kittredge, for the defendant.

F. Ames, for the plaintiff.

O. Stevens, for the administrator.

Z. S. Arnold, for the other defendants.

OPINION

Endicott, J.

It has been repeatedly held that a deposit in a savings bank may be the subject of a valid donatio causa mortis, as well as of a gift inter vivos, and that such a gift may be proved by the delivery of the bank book to the donee, or to a third person for the donee, accompanied by an assignment. Kingman v. Perkins, 105 Mass. 111. Foss v. Lowell Five Cents Savings Bank, 111 Mass. 285. Kimball v. Leland, 110 Mass. 325. Sheedy v. Roach, 124 Mass. 472. Davis v. Ney, 125 Mass. 590.

As there can be no manual delivery of the credit which the donor has in the bank, the...