BAILEY v. NEW BEDFORD INST. FOR SAVINGS

Gift. Savings Bank. Trust. To pass the title to property by gift there must be a delivery and an acceptance actual or constructive.

A widow made a deposit in a savings bank in her name "in trust for E." E. was her nephew, whose first name at her request had been changed to that of her deceased husband. At the time of making the deposit she signed a declaration that no written trust existed, that the deposit was to be payable to her or her order during her life, and after her death to E. She made statements to E.'s father and mother and to other persons that she had remembered E. well and that she wanted him to have the money that she had deposited in the bank for him. She retained the possession and control of the bank book until her death, and left a will in which no provision was made for E. Held, that there was no evidence of a delivery and acceptance of a gift during the lifetime of the depositor or of anything tantamount to a delivery and acceptance, and that the deposit continued to be the depositor's as long as she lived and when she died passed to the executor of her will.

KNOWLTON, C.J.

The money on deposit in the savings bank was originally the property of the testatrix, and there is no doubt that it remained hers up to the time of her death, unless there was a perfected gift of it to Edward B.C. Bailey in her lifetime. It is clear that the mere deposit of it in her name, as trustee for him, did not deprive her of her ownership and control of it. The statement signed by her at the time of making the deposit implies that it remained her property, and subject to her control, although it indicates an intention on her part that so much, if any, of the deposit as she allowed to remain there to the time of her death should become his property. But she could not pass the title to property after her death by such a deposit or by such a statement. Unless it passed in her lifetime, it did not pass at all. To pass property by a gift, there must be a delivery of it to the donee, and acceptance of it by him, or something which is equivalent to such a delivery and acceptance. This has been decided in many cases in which the question has arisen in reference to a deposit in a savings bank in the name of another, or as trustee for another. In Brabrook v. Boston Five Cents Savings Bank, 104 Mass. 228, 231, Mr. Justice Wells said: "There must be some act of delivery out of the possession of the donor, for the purpose and with the intent that the title shall thereby pass." "If the act of transfer be complete on the part of the donor, subsequent acceptance by the donee before revocation will be sufficient." In Scrivens v. North Easton Savings Bank, 166 Mass. 255, it is held that, in addition to what was written in the bank book," The testator must have indicated to the plaintiff in some form of language that the deposit then belonged to him, although he could not have it until his father's death, and that this was assented to by him." In the opinion in Alger v. North End Savings Bank, 146 Mass. 418, 422, we find similar language. Other cases of like import are Clark v. Clark, 108 Mass. 522; Ide v. Pierce, 134 Mass. 260; Nutt v. Morse, 142 Mass. 1; Sherman v. New Bedford Five Cents Savings Bank, 138 Mass. 581; Booth v. Bristol County Savings Bank, 162 Mass. 455; Welch v. Henshaw, 170 Mass. 409; Cleveland v. Hampden Savings Bank, 182 Mass. 110; McMahon v. Lawler, 190 Mass. 343.

In the present case, although the testimony tends to show an intention of the testatrix that the boy Edward should have this money after her death, there is no evidence of a delivery and acceptance of a gift of it in her lifetime, or of anything tantamount to a delivery and acceptance. The property, therefore, remained hers so long as she lived, and passed to her executor after her death.

Judgment on the verdict.