Bartlett v. Remington , 59 N.H. 364 ( 1879 )

Parol evidence was properly received to identify the person called "Sarah." Hiscocks v. Hiscocks, 5 Mee. W. 367; Trustees v. Peaslee,15 N.H. 327; Macdonald v. Longbottom, 1 E. E. 978; Broom Max. 617. The by-laws signed by the deceased, constituting a contract between her and the bank, to which Sarah Sturoc was neither party nor privy, it is proper to show the actual intention of the deceased. An executory trust without consideration is not enforceable. It is essential that the trust be executed, and that the equitable title and beneficial interest be vested in the cestui que trust. Stone v. Hackett, 12 Gray 227; Perry Trusts, ss. 67-100. A deposit in a savings-bank in trust for another, who is neither party nor privy to the transaction, is an executory trust, if the depositor retains the title and power of disposing of the property. Brabrook v. Bank,104 Mass. 228; Gardner v. Merritt, 32 Md. 78; Kilpin v. Kilpin, 1 Myl. K. 533; Minor v. Rogers, 40 Conn. 512; Blasdel v. Locke, 52 N.H. 242.

In cases of this kind, the questions are, whether the depositor intended to establish a trust and make himself a trustee, what is competent evidence of his intention, and what inference of fact is to be drawn from the evidence. Martin v. Funk, 75 N.Y. 134. In this case the depositor did not constitute herself a trustee. The nominal trust was a testamentary disposition of property, not made according to the statute of wills, and the fund remains a part of the depositor's estate. Davis v. Ney,125 Mass. 590; Gerrish v. N. B. Inst. for Savings, 128 Mass. 159; Taylor v. Bruscup, 48 Md. 550; Stone v. Bishop, 4 Cliff. 593.

Decree for the heirs of Mary A. Remington.

FOSTER and STANLEY, JJ., did not sit: the others concurred.