Marcy v. Amazeen , 61 N.H. 131 ( 1881 )

If the administrator is to be regarded as the party resisting Mary's claim, no objection was made to her testimony by the only party who could object. Harvey v. Hilliard, 47 N.H. 551, 553; Burns v. Madigan,60 N.H. 197. The case does not raise the question whether he could authorize John and Florence to exercise his power of objecting. And whatever questions may be raised in the probate court, or in a suit on his bond, as to his duty, the court is no more bound to sustain an objection not made by the proper party, than to act upon a plea of the general statute of limitations that is not filed. Hodgdon v. White, 11 N.H. 208; Amoskeag Co. v. Barnes, 48 N.H. 25, 29; Dewdney, ex parte, 15 Ves. 479. If John and Florence were "the adverse party" within the meaning of Gen. Laws, c. 228, s. 16 (Drew v. McDaniel, 60 N.H. 480, 482), they could not make the objection in their own behalf.

The facts necessary to establish a valid gift to Mary have been found. The donor's actual delivery of the book to her, with the intention of conveying the title, and her acceptance of it, made the transaction a gift inter vivos. Reed v. Spaulding, 42 N.H. 114, 119; Craig v. Kittredge,46 N.H. 57; Sanborn v. Goodhue, 28 N.H. 48, 56; Marston v. Marston,21 N.H. 491; Davis v. Ney, 125 Mass. 590; Gerrish v. Inst. for Savings, 128 Mass. 159, 163; Hill v. Stevenson, 63 Me. 364.

There was no delivery or acceptance of the other bank books. The fact that the father made deposits in the names of his children, but retained possession of the books, without notice to them, and without any declaration of his intention, except that the deposits should be subject to his order, is not a sufficient basis for finding that he intended them as gifts to his children. Retaining the title, and having the right to dispose of the money as he saw fit, he did not make a gift of these two books. Cummings v. Bramhall, 120 Mass. 552, 564. Nor did he on this evidence create a binding trust in favor of his children. If a trust at all, it was executory, and without consideration. No beneficial interest vested in the cestuis que trust. Bartlett v. Remington, 59 N.H. 364. They had no knowledge of the arrangement, and were not parties to it. It was a voluntary disposition of his own property. If notice to the cestuis que trust, or donees, was not an essential element of the supposed trust or gift, and if the retention of the passbooks by the donor is not inconsistent with the completeness of the act (Martin v. Funk,75 N. Y. 134, 143, and Blasdell v. Locke, 52 N.H. 238, 243), still there must be some evidence of the donor's intention to create a trust or to make a gift, before either can be said to exist. Brabrook v. Bank, 104 Mass. 228; Clark v. Clark, 108 Mass. 522; Blasdell v. Locke, supra; Perry's Petition,16 N.H. 44; Sheegag v. Perkins, 4 Bax. 273. But the fact that he attempted to make a gift, and failed, raises no presumption that he intended to establish a trust. The latter cannot be inferred from a radical imperfection in the former. Milroy v. Lord, 4 DeG. F. J. 264, 275; Young v. Young, 80 N.Y. 422, 437; Perry, Trusts, s. 105; Story Eq. Jur., ss. 433, 706, 706a, 1040a; Antrobus v. Smith, 12 Ves. 43; Gardner v. Merritt,32 Md. 78.

The question is, whether the depositor's intention to establish a trust in favor of his children is proved by competent evidence. As there is no express declaration of a trust, as the by-laws of the bank, which became a part of his contract of deposit, are consistent with the idea that he was placing his money there for himself (Howard v. Savings Bank, 40 Vt. 597), and as he retained the bank books without notice to the defendants or to any one for them, and caused an entry to be made on the bank ledger showing that the money was payable to his own order, his intention to create a trust cannot be found.

Case discharged.

SMITH, J., did not sit: the others concurred.