Jones v. McDermott

114 Mass. 400

• Court: Massachusetts Supreme Judicial Court
• Decided: January 15, 1874
• Status: Published

Opinion

Devens, J.

The ruling of the court at the trial is objected to on the ground that there was no sufficient evidence in law that the money paid to the defendant’s wife ever came into his possession, and no evidence that the same was by her delivered to the defendant to be deposited for the benefit of the plaintiff. The evidence on behalf of the plaintiff proved, if believed, that on the 20th and 23d of November, 1865, he delivered to Olive J. Mc-Dermott, who was his daughter, and the wife of the defendant, two sums, amounting in the aggregate to $560; that it was agreed between the plaintiff and Olive that she should take care of his money for him, and that whenever he wanted it, he should call for it and she would give it to him; that all this took place in presence of the defendant, and that there was talk between the defendant and his wife, at the time of its being paid over, as to its deposit; that on the last of these days, the defendant deposited $540 in the savings bank in his own name in trust for Olive J. McDermott; that out of. this sum the defendant, on the 14th day of July, 1866, drew the sum of $40, and subsequently stated that he had drawn about $40 of his wife’s father’s money from the savings bank to pay the funeral expenses of his, the plaintiff’s, son; that in the years 1870 and 1871, he spoke to two .persons about there being some money belonging to the plaintiff in the savings bank; and it was further shown, that the deposit book of the savings bank was kept by the wife until she died, in 1872. This evidence, with the inferences which could fairly be drawn from it, amply justified the verdict. We have not adverted to the evidence by which the defendant sought to meet this, as, if there was sufficient to go to the jury, the questions of its weight and credibility were for them.

The defendant further contends that the statute of limitations is a bar to this action, Olive J. McDermott having received this money in 1865. Upon the evidence as, under the instruction, the jury must have believed it, this money was placed in his wife’s hands in trust for the plaintiff, and the mode adopted by her was to give it to the defendant to deposit; which he did in his own name in trust for his wife. As all this was done by him with full knowledge of the facts, it must be presumed that it was done with the honest intention of executing the trust. His possession was not adverse to that of the plaintiff, for he held the legal title for his wife as cestui que trust, she herself holding in trust for the plaintiff. The plaintiff, so far as appears, had no knowledge of the form in which the deposit had been made. But the money in the defendant’s hands was charged with the trust upon which it had been delivered to his wife. Up to the time of the death of the wife,.there had been no repudiation of this trust, out recognitions of it by the acts and statements heretofore quoted. When the relation of trustee and cestui que trust has been shown to exist, there must be evidence of a repudiation of it, and of an intention to hold the property adversely, before the statute will begin to run. Merriam v. Hassam, 14 Allen, 516, and cases cited.

There is no evidence here of any adverse possession until the defendant, after the death of the wife, took possession of the deposit book and claimed the money as his own.

Exceptions overruled.