Walker v. Welsh

• Decision Date: 09 May 1887
• Citation: 11 N.E. 727
• Parties: WALKER v. WELSH, Adm'r.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

11 N.E. 727

WALKER

v.WELSH, Adm'r.

Supreme Judicial Court of Massachusetts, Suffolk.

May 9, 1887.

Bill in equity to compel the defendant to deliver up a savings bank book. The bill alleged that the plaintiff was the widow, and the defendant the special administrator, of the estate of Wilson Walker, late of Boston, deceased; that during his life-time, said Wilson Walker deposited in a savings bank in Boston, to-wit: The Institution for Savings in Roxbury & Vicinity, the sum of $450, and received from said bank a savings bank book as evidence of said deposit; that said sum was deposited in trust for the plaintiff, and the name and residence of the plaintiff was disclosed to said bank, and no further notice of the terms and conditions of the trust given in writing to said bank; that the book was described as follows: “Number 37,998, Wilson Walker, in trust for Nora Walker, (wife,) 450;” that one of the by-laws of said bank requires that the book be produced upon a demand for payment of any deposit; that the intention of said Wilson Walker, in making said deposit of money, was that the plaintiff should have the benefit of it; that the defendant found said savings bank book among the papers and effects of said Wilson after his death, and after his appointment as special administrator; that he took and has since retained possession of the same, and has refused and refuses to deliver the same to the plaintiff, and has withheld the same, and that said book could not have been and cannot now be come at to be replevined. The prayer of the bill was that the court would by its decree command the defendant to deliver said bank-book to the plaintiff. The court found upon the evidence, that Wilson Walker did not constitute himself a trustee for his wife, Honora Walker, and ordered and decreed that the bill be dismissed, from which decree the plaintiff appealed.

Crowley & Maxwell, for plaintiff.

There is no conflict of evidence. The reason for sustaining the findings of the single judge stated in Montgomery v. Pickering, 116 Mass. 227, and in Reed v. Reed, 114 Mass. 372, does not apply. The uncontradicted facts, as testified to in the case at bar, bear some similarity to those found in Nutt v. Morse, 142 Mass. 1, 6 N.E.Rep. 763, but are distinguished by circumstances favorable to the plaintiff. We think that this case is governed by Gerrish v. New Bedford Inst. for Savings, 128 Mass. 159, and not by Nutt v. Morse, supra, nor by Sherman v. New Bedford Sav. Bank, 138 Mass. 581. Upon the undisputed facts, we contend that all the elements of a fully constituted trust appear, to-wit: (1) The form of the deposit; (2) the intention to create a present equitable interest in the wife; and (3) the communication to the wife of the fact and the purpose of the deposit. The distinctions which we point out between Gerrish v. New Bedford Inst. for Savings, 128 Mass. 159, and Nutt v. Morse, 142 Mass. 1, 6 N.E.Rep. 763, and our contention that this case comes within the former, and not the latter, will be aided by an examination of Sherman v. New Bedford Sav. Bank, 138 Mass. 581. The latter case however, might well have been decided upon the single ground that the alleged cestui que trust never had any knowledge of the deposit until after the death of the depositor. It was argued below that the transaction was void, as being a transfer of property from the husband to the wife. Pub.St. c. 147, § 3. But see Acts 1884, c. 132. But the statute has no relation to this case. It does not forbid direct transfer as through a third person, nor does it forbid the transfer of an equitable interest. By declaration the husband may lawfully make his wife the equitable owner of estate, real or personal; he retaining the legal title in trust for her. Having thus constituted himself trustee, the trust is irrevocable by him or his heirs, next of kin or representatives.

Walter I. Badger and S. Lincoln, for respondent, Francis C. Welch.

This cause presents the simple inquiry whether, as matter of law, upon the pleadings and evidence, the court could enter the decree which was entered; or, stating the same inquiry in another form, whether the pleadings and evidence, as matter of law, imperatively required some decree other than that entered. It cannot be disputed successfully that the decree was not adapted to the pleadings. It directly disposed of the principal issue in the case. It appears, further, that the presiding justice heard oral testimony; that, in fact, substantially no other evidence was offered. He not merely heard, but saw, the witnesses, and was able to judge in part by their appearance how far to credit their statements. It was quite open to him to disbelieve these statements wholly, or in material parts. If he did disbelieve them to either extent, there was no evidence...