Davis v. Ney

125 Mass. 590, 1878 Mass. LEXIS 146

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1878
• Status: Published

Opinion

Endicott, J.

The delivery of the bank books to Emery, accompanied by an assignment, constituted a valid gift, and gave to him a complete title in the fund represented by the books. Foss v. Lowell Savings Bank, 111 Mass. 285. Kingman v. Perkins, 105 Mass. 111. Kimball v. Leland, 110 Mass. 325. In form, the conveyance to Emery was absolute; but it appears from the statement of facts that it was accompanied by an oral agreement, between Mrs. Ney and Emery, that he should pay her during life such sums as she wanted, and that upon her death he should pay over the balance to her son. In execution of this agreement, he paid her a considerable sum of money before her death, and what remained after her death he paid to the son. The appellant contends that this was not a complete gift; that it was an attempt to evade the statute of wills, and that the transaction was a mere form, the nominal title being in Emery, and the real ownership and possession being in Mrs. Ney

It was in the power of Mrs. Ney to make this disposition of her own property. If the trust upon which Emery held it had been declared in writing, it would have come within the case of Stone v. Hackett, 12 Gray, 227. Although not declared in writing, paroi evidence would be admissible to establish the fact that the assignment to Emery, while absolute in its terms, was in reality upon certain trusts or agreements, which, if proved, a court of equity might compel him to execute. Newton v. Fay, 10 Allen, 505. Hunnewell v. Lane, 11 Met. 163. Campbell v. Dearborn, 109 Mass. 130. 1 Perry on Trusts, §§ 85, 86, 226.

In Stone v. Hackett, the income of the property assigned was to be paid to the donor during life, and upon his decease the principal was to be divided among various charities, with a power reserved in the donor to modify or revoke the trust; and the validity of the trust was upheld. In the case at bar, there was no power to revoke, but the donor was entitled by the agreement to such portion of the fund as she required during her life. Such a provision, like a power of revocation, is not inconsistent with the creation of a valid trust. Trusts may be created by will or inter vivas, with power in the trustee to pay, and a right in the cestui que trust to receive, not merely the income, but the principal of the fund, as needed or called for. It is true, all the fund may be drawn out, leaving no balance to satisfy the gift over; but that cannot affect the legal title to the property in the hands of the trustee, and, if any surplus remains, the party designated should receive it.

It does not appear, upon the case stated, that it was the intent of Mrs. Ney to make a disposition of this property in its nature testamentary. Stone v. Hackett, ubi supra. There is no imputation of fraud or collusion between the parties; and it is immaterial that the son was not informed of the transaction until after his mother’s death.

The claim of the appellant, that the balance paid to the son by Emery should have been credited in the son’s account as executor of his mother’s will, cannot, in the opinion of a majority of the court, be sustained ; and the entry must be

Decree of Probate Court affirmed.