Jewett v. Shattuck

Soule, J. The money deposited by the testatrix was inventoried by the appellant as a part of her estate. He had possession of the bank book, which she had retained in her own control during her life, and without which no part of the money could be withdrawn from the bank. The entries on the book showed that the testatrix had from time to time withdrawn portions of the money. The person named in the bank book as cestui que trust had no knowledge of the deposit; the money deposited had never been hers. On these facts, the money belonged to the estate of the testatrix, and the cestui que trust could not have maintained an action against the bank, for the amount of the deposit, as decided in Brabrook v. Boston Five Cents Savings Bank, 104 Mass. 228, unless the coverture of the testatrix when the deposit was made introduces a new and decisive element into the case. The argument is that the money deposited could not have been the money of the testatrix, because she was legally incapable of owning money, and that it must have been her husband’s money deposited by his direction in her name as trustee 592 for the cestui que trust. But there is no evidence that the' deposit was thus made by the husband’s direction. The testatrix deposited at her own option, so far as appears, sometimes in her own name, sometimes as trustee merely, sometimes as trustee for a person named, and drew from the money deposited at will, for her own use. If we assume then that the money was given her by her husband, which does not appear, it was deposited in his lifetime, and the testatrix held in its stead a chose in action which was not reduced to possession by him, and therefore survived to her. Hayward v. Hayward, 20 Pick. 517. The effect of the transaction would be analogous to purchase by the husband of bank shares, the certificate for which he took in the name of his wife and gave to her. Adams v. Brackett, 5 Met. 280, 284. We are of opinion, therefore, that the appellant was not warranted in paying the amount of the deposit, with the accrued interest, to the person named in the book as cestui que trust, and is not entitled to an allowance in his acount as executor for the amount so paid. Decree affirmed.