Husband and Wife. Bank. Interpleader. Practice, Civil, Motion to quash.
If a wife, without her husband's knowledge or consent, takes a sum of money belonging to her husband and deposits it in a savings bank in her own name, and then dies, and if her husband, on learning after her death of the existence of the deposit, demands from the savings bank its payment to him, and the bank refuses to make the payment, the husband is entitled to the deposit as against the executor of the will of his wife, and may recover its amount in an action against the bank, to which the executor is made a party defendant on a petition of interpleader under St. 1908, c. 590, § 50.
Where, in an action against a savings bank by a husband after the death of his wife to recover the amount of a deposit of money belonging to him that was made by his late wife in her own name without his knowledge or consent, the executor of the will of the plaintiff's wife, upon a petition of interpleader filed by the defendant bank under St. 1908, c. 590, § 50, is made a party defendant as the claimant of the fund, and thereupon appears and files an answer, and the case is tried before a jury, who find on an issue framed for them by the judge that the money deposited was the property of the plaintiff, it is too late after this finding for the executor to move to quash or reverse the order of court by which he was made a defendant.
BRALEY, J.
The plaintiff's title to the fund did not rest upon the assumption of a gift to him by his deceased wife by whom and in whose name the deposit had been made, but upon his contention that without his knowledge or consent the money being his property had been taken and appropriated by her. It is stated in the report, that the bank book was not produced at the trial, "and none of the parties had any knowledge of its whereabouts." A demand having been made for payment, which the bank unqualifiedly refused, and the jury having found that when deposited the money was his property, it has no defense to the plaintiff's action. Broderick v. Waltham Savings Bank, 109 Mass. 149. Bailey v. New Bedford Institution for Savings, 192 Mass. 564. Cole v. Bates, 186 Mass. 584, 586.
But, as the depositor died testate and the executrix claimed the deposit, the petition of the bank under the provisions for interpleader in R.L.c. 113, § 38, that the proceedings be amended by making the claimant who is "another party than the plaintiff" the defendant was properly allowed. The question thereafter was whether the plaintiff or the claimant was entitled to the fund. Booth v. Bristol County Savings Bank, 162 Mass. 455. Bailey v. New Bedford Institution for Savings, 192 Mass. 564. Pierce v. Boston Five Cents Savings Bank, 125 Mass. 593, 596. See R.L.c. 173, § 37; Supple v. Suffolk Savings Bank, 198 Mass. 393.
The court furthermore had jurisdiction of the subject matter and of the parties. If the claimant upon being cited in desired to raise the question whether the proceedings were irregular because not in conformity with her construction of the statute, she should have done so before joining issue and going to trial on the merits. The motion to quash filed after the verdict against her came too late. Craig Silver Co. v. Smith, 163 Mass. 262, 268. R.L.c. 173, § 46. And the plaintiff's motion for judgment was rightly allowed. R.L.c. 177, § 1.
By the terms of the report the plaintiff is to have execution in accordance with the order of June 24, 1914, and in the subsequent action brought by the executrix the defendant bank is to have judgment without costs.
So ordered.