Supreme Lodge of the Portuguese Fraternity of the United States v. Liberty Trust Co.

Loring, J. This is a bill in equity brought by a fraternal beneficiary corporation to compel the transfer to it of $1,137.27. The [29] defendants are the executrix of the will of Manuel J. DeAvellar and a trust company in which DeAvellar during his lifetime had a deposit account in his own name. The bill is based upon the theory that this $1,137.27 was the amount of trust moneys belonging to.the plaintiff which it can in fact trace to the deposit account under the doctrine fully explained in Hewitt v. Hayes, 205 Mass. 356. The judge found for the plaintiff, and the case comes before us on his findings without the evidence on which they were made. It appears that DeAvellar died on January 1,1911, and that on October 25, 1910, he overdrew the deposit account in question through a mistake in subtraction in figuring out the amount then on deposit. But the judge found that “ as soon as it was discovered that he had made the mistake the amount was paid by him to the company,” and that "there was an intention on his part to replace it, which he had a right to do.” We interpret this to be a finding that DeAvellar immediately corrected this mistake and deposited to the credit of this account such sum as was necessary to leave in this account the plaintiff’s money intact which up to this time had been in this account untouched. This did not act as a dissipation of the trust fund. On that point Perkins v. Perkins, 134 Mass. 441, is decisive. The defendant has argued that DeAvellar had no right to correct this mistake because he was insolvent at the time. As to that it is enough to say that it does not appear that he was insolvent at that time. In fact there is no finding that he was insolvent at any time. The other contentions argued by the defendant are concluded by the findings of the judge which in the absence of the evidence on which they were made are final. The plaintiff has asked that the decree be modified so as to give it interest on its money. But the only appeal taken from the decree was taken by DeAvellar’s executrix. Whether the decree ought to have given the plaintiff interest is not before us. The decree must be affirmed with costs to be paid by the executrix. So ordered.