Trust. Assignment. Will. A woman, having saving bank deposits amounting to about $2,000, executed and delivered an instrument in writing under seal transferring and conveying all her personal property, consisting of these deposits, to a trustee "in trust for the following uses: (1) Said trustee shall pay to me such moneys as I may demand of him at any time during my life until I have used the amount conveyed to him by me by this deed. (2) Upon my death said trustee shall pay my funeral expenses. And the sum of $50 to my nurse. . . . (3) After my death said trustee shall pay to my husband, J.L., if he survives me, the sum of $3 per week during his life or as long as said funds shall last. (4) If upon the death of my husband and myself there are any funds remaining in the hands of said trustee said trustee shall divide said balance of said trustee funds in equal parts and give said parts to [certain second cousins named.] I hereby reserve to myself the right to revoke this deed at any time during my life." On the delivery of this instrument the assignor told the trustee "that she intended by it to dispose of the property after she was dead as well as while she was living" and that "she intended this instrument in place of any will she might leave." Held, that by the instrument the assignor in no way limited her beneficial enjoyment of the property or her right to dispose of it during her lifetime, and that the portion of the instrument which related to the disposition of the property after her death was void as an attempt to make a testamentary disposition of property without executing a will in the manner required by the statutes of the Commonwealth; and that, even if such a testamentary intent did not appear sufficiently from the interpretation of the instrument itself, there was evidence of this fact in the declarations of the assignor.
KNOWLTON, C.J.
The question in this case is whether the assignment to a trustee, made by Jane Lever, was a transfer of her property which divested her of her ownership and control during her lifetime, or whether it was in intention and legal effect an attempted testamentary disposition of such of her money as should remain at her decease. The property included in the conveyance was merely the deposits in certain savings banks. The trustee testified that she told him she intended to dispose of the property after she was dead as well as while she was living, and that she intended the instrument in place of any will she might leave. There was in the deed an express reservation of a power of revocation. This in itself would not render it invalid if the instrument otherwise seemed intended to divest her of her absolute control of the property, as owner or as cestui que trust during her life, and to deprive her of the rights of a beneficiary who has a perfect power of disposition under the trust.
The trust in this case may be considered first in reference to its effect on the property during her life, and then in reference to its effect upon what might remain after her death. The first statement of the trust by the assignor in the assignment is in these words: "Said trustee shall pay to me such moneys as I may demand of him at any time during my life until I have used the amount conveyed to him by me by this deed." This gave her the right to demand any part or the whole of the money at any time, for any use that she chose to make of it. It left her the sole beneficial owner of it, with an absolute power of disposition as long as she lived. As against her, therefore, the only practical effect of the instrument during her lifetime was to give the trustee a right to collect and hold the property until she should ask for it. Her rights as beneficial owner during her life were not limited in any material way. She could revoke the trust at any time, or she could demand and receive from the trustee all the money, at any time, under the trust, and then do with it what she chose.
The assignment is very different from that in Kelley v. Snow, 185 Mass. 288, in which the only right in the property reserved to the assignor for herself during her life was a right to use the income. While she had a power by the writing to change the disposition of what remained after her death, she could not diminish the property which necessarily would pass to others under the trust.
The other part of the trust created by the instrument in the present case relates solely to the disposition of the property after the assignor's death. It follows that the only material effect of the instrument was testamentary, and that it cannot be given effect under our statutes, which permit a testamentary disposition of property only by a duly executed will. See Nutt v. Morse, 142 Mass. 1; Sherman v. New Bedford Five Cents Savings Bank, 138 Mass. 581; Brownell v. Briggs, 173 Mass. 529; Welch v. Henshaw, 170 Mass. 409; Bailey v. New Bedford Institution for Savings, 192 Mass. 564.
But, if it be thought that this view of the construction and necessary legal effect of the instrument is too favorable to the claimant, the exceptions must be overruled on the ground that the evidence justified a finding by the trial judge that the paper was intended as a mere testamentary disposition of property, and not as a creation of a trust for any other purpose, and that therefore there was no error of law in the finding.
No question has been raised by either party in regard to the finding and order as to costs, and we do not consider it.
Exceptions overruled.