Robertson v. Parker

• Decision Date: 02 July 1934
• Citation: 287 Mass. 351,191 N.E. 645
• Parties: ROBERTSON v. PARKER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

287 Mass. 351

191 N.E. 645

ROBERTSON

v.PARKER.

Supreme Judicial Court of Massachusetts, Suffolk.

July 2, 1934.

Petition from Probate Court, Suffolk County; G. M. Pollard, Acting Judge.

Bill in equity by Eva R. Robertson against John Parker, executor, and against him individually. Decree for respondent, and petitioner appeals.

Affirmed.

H. H. Ballard, Jr., for Boston, for respondent.

C. J. Moynihan and D. J. Coddaire, both of Boston, for petitioner.

CROSBY, Justice.

The petitioner brings this bill in equity in the probate court against the executor of the will of William J. Anderson and against him individually to establish a trust in a deposit in the Union Savings Bank of Boston for the benefit of the petitioner.

The judge of probate found the following facts: The testator, William J. Anderson, died January 18, 1933, when about ninety-three years of age, leaving a will which has been allowed. The respondent Parker is named as executor and residuary legatee. No gift was made to the petitioner in the will. In July, 1910, the testator deposited $1,000 in the Union Institution for Savings in his name ‘Tr. for Eva Robertson,’ the petitioner, which is the subject of this suit. The petitioner and another person were the testator's second cousins, his wife having died in 1914. In July, 1910, he had another older deposit in this savings bank then amounting to about $1,600. The judge further found that ‘By statute and * * * by-laws of the bank, the amount of interest bearing principal permittedto one depositor in the bank was * * * ($1,000) * * * in 1910.’ The bank would not have accepted the $1,000 in his own name as depositor, because he then had a deposit of $1,600. The executor, soon after his appointment, presented to the savings bank the deposit book for $1,000 which he found in the testator's safe deposit box where he had always kept it, and had this deposit transferred to the older account, which was then placed in the name of the estate, ‘John Parker, Executor.’ The account in the name of the testator, ‘Tr. for Eva Robertson,’ was then closed on the bank's books. The judge further found that ‘Outside of the words ‘Tr. for Eva Robertson’ on the bank's books and the deposit book the only evidence showing acts or declarations by the testator in respect of the deposit is the following testimony': The petitioner testified that some time about 1927 or 1928 she told the testator, whom she often visited at his home, that she had to use a considerable sum of money to make a payment, to which he replied that she could go ahead and make the payment, that she had money coming to her, that ‘there is money in the bank for you,’ that when he was through, she would be taken care of, that she ‘would have what he had’; that he also said to her: ‘Mrs. Anderson (his wife) has taken care of you by putting something away, I'll see that you have it.’ The judge states in his finding of facts and rulings that the testimony of the petitioner above recited is believed by him, and that the facts testified by her are found. There was also testimony that ‘The testator's wife said to * * * his housekeeper, that she (Mrs. Anderson) had Mr. Anderson put One Thousand * * * Dollars in the bank for the petitioner’; and that some time in 1932 the testator told the respondent Parker that the petitioner ‘had got all that she was going to get from him.’ The judge found that the foregoing is all the evidence as to the acts and declarations of the testator which is material to the issue; and that the petitioner first learned the name of the bank and the amount of the deposit after the testator's death; that the testator sometimes gave the petitioner small sums of $5 on her visits; and that the whole amount of his gifts to her amounted to not more than $100. Upon the foregoing facts the judge found and ruled that the petitioner is not entitled to the proceeds of the deposit described in the petition, and that they are assets of the estate; a decree was entered accordingly. From the decree the petitioner appealed.

It is not contended by the petitioner that the deposit in question was a gift inter vivos. She contends, however, that the making of the deposit constituted a trust for her benefit and that she is now entitled to the principal sum of the trust. ‘A deposit in a savings bank in the name of another is not alone sufficient to prove a gift. * * * Nor is the fact that the savings bank book designates the depositor as trustee for another conclusive evidence of the existence of the trust.’ Booth v. Bristol County Savings Bank, 162 Mass. 455, 457, 38 N. E. 1120, 1121;Mulloy v. Charlestown Five Cents Savings Bank, 285 Mass. 101, 188 N. E. 608. The evidence is not sufficient to warrant a finding that the testator intended to create a trust in favor of the petitioner. A finding was warranted that the testator made the deposit of $1,000 as ‘Tr. for Eva Robertson’ so that he might collect the interest thereon, as he had another older deposit of $1,600 in the same bank and the bank would not have accepted the $1,000 in his own name as a depositor. It was said by Holmes, J., speaking for the court in Parkman v. Suffolk Savings Bank, 151 Mass. 218, at pages 219, 220, 24 N. E. 43: ‘The fact that the savings bank book designates the plaintiff's intestate trustee for the claimant is not conclusive of the existence of a trust. * * * As it is a well-known practice for people who have deposited in their own names the full amount allowed to open new accounts ostensibly as trustees for others, but in fact for their own benefit, evidence that the intestate had deposited the full amount allowed to his own use was admissible as offering a possible explanation of the form adopted other than the intention to make a gift.’ The testimony of the petitioner that the testator...