Sherman v. New Bedford Five Cents Sav. Bank

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation138 Mass. 581
PartiesIsaac C. Sherman, executor, v. New Bedford Five Cents Savings Bank
Decision Date27 February 1885

138 Mass. 581

Isaac C. Sherman, executor,

New Bedford Five Cents Savings Bank

Supreme Judicial Court of Massachusetts

February 27, 1885

Argued October 28, 1884.


Contract for money had and received, being the amount of a deposit in the defendant bank, made by Urial Sherman, the plaintiff's testator. The First Central Congregational Society of Rochester intervened as a claimant of the fund, under the Pub. Sts. c. 116, § 31. Trial in the Superior Court, before Gardner, J., who directed the jury to return a verdict for the claimant; and reported the case for the determination of this court. The facts appear in the opinion.

Judgment for the plaintiff.

C. T. Bonney & A. B. Collins, for the plaintiff.

E. Robinson, for the claimant.

C. Allen & Colburn, JJ., absent. W. Allen, J.


W. Allen, J.

By the intervening of the claimant under the Pub. Sts. c. 116, § 31, the action becomes a proceeding between the plaintiff and the claimant to determine to which of them the fund belongs.

The money deposited belonged to the plaintiff's testator, and the fund continued to be his, unless he made a gift of it to the claimant when it was deposited. To constitute a gift, there must have been a transfer of the fund to the claimant, or at least a transfer of it to the depositor as trustee for the claimant. Sweeney v. Boston Five Cents Savings Bank, 116 Mass. 384, was an instance of the former, where a man went with his wife [138 Mass. 582] to the savings bank, and deposited his money in her name, she signing as depositor the usual agreement, and taking the book into her possession. Gerrish v. New Bedford Institution for Savings, 128 Mass. 159, was an instance of the latter; where a man deposited his money in his own name as trustee for his son, and retained the book in his possession, but verbally informed the son of his intention thereby to give him an immediate title in the fund, reserving the income for his own life. It was held that there was evidence to submit to a jury that the depositor had constituted himself trustee for the son. But a declaration of trust by the owner, or a deposit of the fund in his name as trustee, or a deposit in the name of another, will not of itself be sufficient to prove a gift or voluntary trust; there must be some further act or circumstance showing a perfected gift of the legal or equitable interest. Clark v. Clark, 108 Mass. 522. Broderick v. Waltham Savings Bank, 109 Mass. 149. Powers v. Provident Institution for Savings, 124 Mass. 377. Cummings v. Bramhall, 120 Mass. 552. Eastman v. Woronoco...

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