Supple v. Suffolk Savings Bank for Seamen

Sheldon, J. There was no doubt much evidence in this case tending to show that there had been no executed gift of the deposit in question to Foley, the claimant’s intestate, and no such completed trust created in his favor as to constitute him the beneficial owner of the fund. But it is not for us, as has often been said, to pass upon the weight of the evidence. The finding of the judge who tried the case without a jury must stand if there was any evidence to support it. If we assume that there was no delivery of the bank book to Foley, then the question was whether there was evidence that Mrs. Cunning,ham, by her own conduct and declarations, had manifested a completed and executed intention to establish a trust in his favor, and whether this intention had been communicated to him and assented to by him, so that both parties understood that the trust was not simply inchoate and resting in an intention to be finally consummated in the future, but actually had been fully carried out so that the beneficial interest had become irrevocably vested in him. Gerrish v. New Bedford Institution for Savings, 128 Mass. 159. Alger v. North End Savings Bank, 146 Mass. 418. It was not enough that Mrs. Cunningham should have made her deposit formally in trust for Foley; it would not be enough even that she had communicated to others the fact of her attempted creation of a trust; it could not be said to have become a completed and executed transaction until it had been communicated to him, or at least to some one acting in trust for him and for his benefit, and accepted by him. Welch v. Henshaw, 170 Mass. 409. Kendrick v. Ray, 173 Mass. 305. Bennett v. Littlefield, 177 Mass. 294. Bailey v. New [397] Bedford Institution for Savings, 192 Mass. 564. Boynton v. Gale, 194 Mass. 320. But admissions by an alleged donor that there has been an executed gift or a completed trust may of course be proved against her or her representatives, and may be found to include admissions that there has been either an actual delivery of the article or an effectual communication of the trust to the intended beneficiary and an acceptance of it by the latter. McMahon v. Lawler, 190 Mass. 343. In that case the gift was sustained, not because the intention of the donor had been made known to others, but because from her admissions a finding was warranted that the gift had been communicated to the beneficiary and accepted by her. Applying these principles to the case at bar, there was evidence to warrant a finding for the claimant. The donor’s declarations that she had made provision for Foley, which, standing alone, could have been accounted for by the provisions of her will, might be found on the other evidence to have applied to this deposit. Mrs. Levins testified that Foley spoke to Mrs. Cunningham of “ that money she had on the book for him.” Mrs. Cunningham’s drafts upon the account might be found to have been for his benefit, either to pay fines for him or to put him directly in funds. And a reservation of the interest for her own benefit would not necessarily have been fatal to the gift of the principal. Bone v. Holmes, 195 Mass. 495, and cases cited. Moreover, there was evidence on which it might have been found that at least a part of the money deposited belonged originally to Foley; and, if this fact were established, it would go far in the claimant’s favor. Hunnewell v. Lane, 11 Met. 163. Farrelly v. Ladd, 10 Allen, 127. She had held bonds belonging to him; and, though she finally had turned these over to him, it might have been found that she had not fully accounted for the interest which she had previously collected. Accordingly the plaintiffs’ requests for rulings could not have been given, and the judge’s finding for the claimant was warranted. The evidence of Foley’s declarations as to money which Mrs. Cunningham had belonging to him was competent both to show his acceptance of the gift and because (as we must now take it) [398] found by the judge to have been made by him in good faith upon personal knowledge, under R. L. c. 175, § 66. Chaput v. Haverhill, Georgetown & Danvers Street Railway, 194 Mass. 218. If the answer of the witness, as distinguished from the question, was objectionable, the plaintiffs’ remedy was to move that this be stricken out. The exception to the admission of evidence that the plaintiffs as executors did not account for this deposit has not been separately argued by the plaintiff. Though of slight probative value we cannot say that it was incompetent as an admission by the plaintiffs. They knew of this deposit; if it was not Foley’s, it was their duty to account for it. In the absence of explanation, and they seem to have offered none, this conduct might be found to be inconsistent with their contention. Exceptions overruled.