BONE v. HOLMES

Gift. Bond. Assignment. Corporation, Transfer of shares of stock. Savings Bank. Evidence, Admissions.

At the trial before a judge sitting without a jury of an action against an executor for conversion, in which the plaintiff contended that the defendant wrongfully was detaining a bond given to the plaintiff by the defendant's testate, there was evidence that the bond was payable to the defendant's testate and was transferable by an assignment duly indorsed thereon, that the defendant's testate made a proper assignment in writing on the bond and delivered it to the plaintiff, that it then was put in the safety deposit box of the defendant's testate marked as the property of the plaintiff and with the statement "This is here for safe keeping," that it subsequently was transferred to a safety deposit box of the plaintiff and, on his giving up the box, again was transferred to the box of the defendant's testate where it was at the time of his death although in the meantime the plaintiff had procured another box of his own, and that there never had been any transfer of the bond on the books of the obligor. Held, that a finding for the plaintiff was warranted.

A gift of a bond, a share of the capital stock of a corporation and a savings bank deposit, subject to an agreement by the donee that the donor shall have the income from them during the donor's life, takes effect notwithstanding such reservation.

At the trial before a judge sitting without a jury of an action against an executor for conversion, in which the plaintiff contended that the defendant wrongfully detained a coupon bond which the defendant's testate had given to the plaintiff, there was evidence that the bond was payable to bearer, that the defendant's testate had handed the bond to the plaintiff with the words, "This is yours, but if you will cut off the coupons and give them to me during my life," that thereafter the bond at first was kept in the safety deposit box of the defendant's testate, but, when the plaintiff had such a box, was kept there, that on the day of his death the defendant's testate asked the plaintiff for the bond to sell to provide funds for a journey that they were to take together and the plaintiff gave him the bond, but, the defendant's testate finding he had sufficient other funds, returned the bond to the plaintiff, that, there being at that time some conversation between them as to who should have the bond in case they should die together, the defendant's testate at the plaintiff's suggestion wrote on the envelope containing it "This document is to be given to" the plaintiff "if he survives me, and in event of his death and mine at the same time, I wish this given to E.," and signed the statement, that, it then being necessary to hasten, the plaintiff, to save time, put the bond in the box of the defendant's testate, where it was found after his death. Held, that a finding for the plaintiff was warranted.

At the trial before a judge sitting without a jury of an action by an executor for conversion, in which the defendant contended that certain shares of the capital stock of a corporation, alleged by the plaintiff to have been converted by the defendant, were given to him by the plaintiff's testate, there was evidence that the plaintiff's testate filled out the blank form for transfer of the shares found on the back of the certificate, providing for transfer to the defendant, and delivered the certificate to the defendant, that it was intended by the plaintiff's testate that he, the plaintiff's testate, should continue to receive the dividends during his life and such dividends were sent by the corporation to his bank and there deposited to his credit, that the certificate at first was put in a safety deposit box of the plaintiff's testate marked in his handwriting, "This is the property of" the defendant, "put here for safe keeping," but that later it was kept in the defendant's box. There also was evidence that at one time before the delivery of the certificate to the defendant the plaintiff's testate expressed an unwillingness to transfer and deliver the stock during his life to the defendant, but wished to retain it in his own control, as well as evidence of statements and conduct of the plaintiff's testate inconsistent with an intention to make a complete gift to the defendant. The stock never was presented for transfer on the books of the corporation. Held, that a finding for the defendant was warranted.

Where, at a trial before a judge sitting without a jury, a material question was whether one before his death made a completed gift of a savings bank deposit, and there was evidence that the depositor wrote an order on the bank to pay the amount of his deposit to the person claiming it and delivered to that person the pass book, at the same time stipulating that he, the depositor, should be allowed the interest during his life, that the pass book at first was kept in the depositor's safety deposit box, later in a box of the donee, and later still and until his death in the depositor's box, but the written order was always in the possession of the donee. Held, that, although there was evidence which would support a contrary finding, a finding that there was a completed gift was warranted.

Evidence of admissions of a party to an action by language and conduct is not conclusive but can be explained, and he can take a position inconsistent with that seeming to be indicated by such evidence.

SHELDON, J.

We are of opinion that there was evidence which warranted the finding in each of these cases.

1. There was evidence that Mrs. Allen executed a formal assignment of the Tyler Street Day Nursery bond to Miss Bone, and delivered the bond and the assignment to her; that it was then put in Mrs. Allen's box in a safety vault for safe keeping, marked, "This is the property of Alice H. Bone, and is here for safe keeping"; that Miss Bone afterwards took a box of her own, and put the bond in that for a time, until she gave up that box and put the bond back in Mrs. Allen's box, where it remained until the latter's death. On this evidence the court had a right to find that there had been a sufficient delivery of the bond to Miss Bone, with intent to pass the title. The fact that the bond was found in Mrs. Allen's box after her death was of course to be considered; but it was not necessarily decisive. Scrivens v. North Easton Savings Bank, 166 Mass. 255. The same may be said of the fact that the assignment had not been presented to the obligor or the bond transferred upon its books. Andrews v. Worcester, Nashua Rochester Railroad, 159 Mass. 64. And the talk at the time of the delivery of the bond and assignment to Miss Bone did not amount to a reservation of the interest during Mrs. Allen's life, nor would such a reservation have conclusively avoided the gift. Stone v. Hackett, 12 Gray, 227. Davis v. Ney, 125 Mass. 590. Tyndale v. Randall, 154 Mass. 103. Bromley v. Mitchell, 155 Mass. 509.

As to the bond of the Bangor and Aroostook Railroad Company there was evidence that Mrs. Allen, some years before her death, handed it to Miss Bone, saying, "This is yours, but if you will cut off the coupons and give them to me during my life." This warranted a finding that the property passed absolutely to the donee, and such a reservation of the interest for the life of the donor would not prevent the gift from taking effect. See the cases cited above. The donor trusted the donee to give back the coupons as they should become due. Nor did the testimony as to the subsequent custody of the bond or the direction afterwards written by Mrs. Allen upon the envelope containing it necessarily show that there had been no previous delivery of the bond and vesting of the title, subject to a qualified reservation of the interest, in the donee. Kendrick v. Ray, 173 Mass. 305, 308, 309. Chase v. Perley, 148 Mass. 289. Scott v. Berkshire County Savings Bank, 140 Mass. 157. We do not mean to say that this evidence, under the circumstances of the case, was inadmissible, or that with the other evidence it might not have warranted a different finding from that which was made; but we cannot pass upon the weight of the evidence.

2. As to the sixty shares of Sugar preferred stock which are the subject of the second suit, the facts which might be found do not differ essentially from those which have been stated in considering the first suit. The stock was not transferred on the books of the corporation, and it was intended that the dividends should be paid to Mrs. Allen for her life. But we have already seen that these circumstances are not conclusive against Miss Bone's contention that as between the parties there was an absolute transfer of the title to her.

The executor relied strongly on the evidence that Mrs. Allen expressed at one time an unwillingness to transfer and deliver the stock during her own life to Miss Bone, but wished to retain it in her own control and allow the title to pass only after her own death, which would make the inference of a present gift taking effect during the life of the donor impossible. Duryea v. Harvey, 183 Mass. 429, 433. Coleman v. Parker, 114 Mass. 30, 32. Stone v. Hackett, 12 Gray, 227. But there was also evidence that subsequently Mrs. Allen wrote Miss Bone's name as transferee into the blank assignment and delivered the certificates to Miss Bone, and that they remained in the latter's exclusive possession for a year, when they were put into Mrs. Allen's box, with a paper pinned upon them, reading in Mrs. Allen's handwriting: "This is the property of Alice H. Bone, put here for safe keeping." The court had a right on this evidence to find that the gift which Mrs. Allen intended to make to Miss Bone had been carried into effect by an absolute delivery. Andrews v. Worcester, Nashua Rochester Railroad, 159 Mass. 64. The evidence of statements by and conduct of Mrs. Allen inconsistent with such a finding simply presented a question of fact which was passed upon at the trial.

3. The questions raised in the third suit, brought to recover the deposit in the Boston Five Cents Savings Bank, are sufficiently disposed of by what has been said. The judge had the right to find that there had been a completed and absolute gift and delivery of the bank book made by Mrs. Allen to Miss Bone, and to sustain the latter's claim to the deposit. Peck v. Scofield, 186 Mass. 108. Debinson v. Emmons, 158 Mass. 592. Eastman v. Woronoco Savings Bank, 136 Mass. 208. Pierce v. Boston Five Cents Savings Bank, 129 Mass. 425. The mere fact that there was also evidence which would have warranted a different finding is not for us to consider. McMahon v. Lawler, 190 Mass. 343.

It may well be, as contended by the executor, that if there had been here no completed and absolute gift the attempted dispositions could not have been sustained by treating them as declarations of trust; but that question does not arise, and his claim that Miss Bone is absolutely bound by admissions to be inferred from her language and conduct, and cannot explain these away or stand upon any ground inconsistent with them, is not to be supported. Baldy v. Stratton, 11 Penn. St. 316.

It is not necessary to consider the exceptions saved by Miss Bone.

In each case the entry must be

Exceptions overruled.