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(145 N.E.) 774; Carriere v. Merrick Lumber Co., 203 PIERCE, J. This is an action of contract Mass. 322, 327, 89 N. E. 544; Marcy v. Shel. to recover the amount of a deposit of $2,000, burne Falls & Colrain Street Railway, 210 with accrued interest thereon, made in the Mass. 197, 199, 96 N. E. 130; Freeman's Case, defendant bank on the 11th day of October, 233 Mass. 287, 291, 123 N. E. 845.

1920, in the name of Clara E. Sawyer or AnIt follows from all that has been said that geline Battles. The defendant Marvin M. the demurrer was overruled rightly.

Taylor, executor of the will of Clara E. SawDecree affirmed with costs.

yer, was duly made a party to the suit as an adverse claimant to the fund. The defendant Millbury Savings Bank is ready and willing to pay said fund to whomsoever the court

shall decree it belongs. BATTLES V. MILLBURY SAVINGS BANK

The material and undisputed facts, diset al.

closed by the record are that the plaintiff,

nearly 80 years old at the time of the trial (Supreme Judicial Court of Massachusetts. in 1924, went to Millbury, Mass., every sumWorcester. Oct. 21, 1924.)

mer to visit her half-sister and the daughter 1. Gifts 30(4)-Deposit in savings bank to of her half-sister, Mrs. Sawyer; that they joint account would operate as complete gift were very good friends; that Mrs. Sawyer in joint ownership, if so intended.

died April 19, 1921, aged about 65 years; Deposit in savings bank by one to joint that the plaintiff visited her half-sister and account of himself and another would operate Mrs. Sawyer in 1920 from June until Octoas present and complete gift in joint owner- ber; that she intended to have gone home ship, if depositor clearly intended such result. the week before she did, but stayed over be2. Gifts Cw49(5)—Retention of deposit book cause Mrs. Sawyer wanted her to stay so by Joint depositor not conclusive against that she (Mrs. Sawyer) could go to Worcestright of other to show intention to make er and see about depositing the money, and present gift.

that she could not leave her mother alone; Retention of deposit book by deceased aft- that Mrs. Sawyer went to Worcester one er having made deposit to herself and another day and when she returned she had a converjointly was evidence shedding light on her in-sation with the plaintiff and showed her a tention, but was not conclusive against right bank book; that the plaintiff did not take it of other to show intention to make present gift in her hand, but Mrs. Sawyer held it so that of joint interest in deposit.

the plaintiff saw it and saw that the book 3. Wills 90—Joint deposit, intended as gift was “made out to our names and $2,000 and on death, obnoxious to statute of wills.

date." A savings bank book No. 16420, isDeposit by deceased in name of herself and sued by the Millbury Savings Bank, showing another jointly, if intended as a gift to take a deposit of $2,000 on October 11, 1920, in effect at her death, is obnoxious to statute of the name of "Clara E. Sawyer or Angeline wills.

Battles," was identified by the plaintiff as 4. Banks and Banking w 129–Rule stated as

the savings bank book shown her by Mrs. to nature of right arising under deposit by Sawyer, and it was admitted in evidence. one in name of herself and another.

The record discloses that on Mrs. Sawyer's Where one placed money in savings bank return she said to the plaintiff “she had been in name of herself and another, as between in and deposited some money on joint acbank and joint depositors, right of either did count of herself and (Miss Battles); that the not arise by virtue of gift either at time of de plaintiff replied, "You will probably outlive posit or at time of depositor's death, but was me," and Mrs. Sawyer answered, “I am not right in form of chose in action against bank

I don't know about that.” In crosscreated by contract with bank.

examination the plaintiff, in reply to the

question, "Wasn't something said which Exceptions fom Superior Court, Worcester caused you to say, "You will probably outCounty; N. P. Brown, Judge.

live me'?" answered. “When she deposited Action of contract by Angeline Battles the money she said she made a joint account against the Millbury Savings Bank to recover

of it." She further testified that she made deposit made in name of "Clara E. Sawyer the remark.“ You will probably live longer

than I'

because or Angeline Battles," in which Marvin M.

[she] knew Taylor, executor of the will of Clara E. Saw

[Mrs. Sawyer) had deposited (the yer, deceased, was made defendant. The

money) in case she passed away before the jury found for plaintiff, and the executor

plaintiff] did"; that she understood it had brings exceptions. Exceptions sustained.

been deposited in case Mrs. Sawyer passed

away before she (the plaintiff) did. The witL. E. Stockwell, of Worcester, for plaintiff. ness testified, in answer to the question,

M. M. Taylor, of Worcester, for defend- "Didn't she say something to that effect?" ants.

"That was all I said and all she said." To For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

sure.

the question, “Didn't she say something to wills and the commonwealth out of any the effect that she had deposited it so that money that might be coming due it in the you would have it if she passed away?" the shape of taxes," and further instructed the plaintiff answered: “That was ail. When jury, “that to prevent the plaintiff from reshe came in with the book she showed it to covering both she and Mrs. Sawyer must be me and she said she had done that, that is shown as parties to some scheme to do nothwhat passed between us.” To the question, ing else in this case except to circumvent “Didn't she say something to the effect that and get around the statute of wills controlshe had done it so you would have the money ling the disposition of Mrs. Sawyer's propif she passed away first ?" the plaintiff an- erty." swered: "She didn't say anything, but I sup .[1, 2] The refusal of the judge to give the posed she understood it.” To the question, requested rulings was error. As a matter of “You understood it?" she answered, “Yes;” law Mrs. Sawyer could legally deposit money and “Yes” to the question, "Then you made in a savings bank to the joint account of herthe remark 'You will probably outlive me'?” self and Miss Battles, which deposit would

It further appeared that Mrs. Sawyer operate as a present and complete gift in gave the plaintiff A card to be signed," joint ownership if Mrs. Sawyer clearly inwhich was put in evidence; that the plain- tended such a result. Attorney General v tiff signed it "Angeline Battles; residence, Clark, 222 Mass. 291, 110 N. E. 299, L. R. A. Plymouth;" that there was no other writing 1916C, 679, Ann. Cas. 1917B, 119; Chippenon the card and that Mrs. Battles inferred dale V. North Adams Savings Bank, 222 Mrs. Sawyer took it to the bank; that Mrs. Mass. 499, 111 N. E. 371; Marble v. TreasSawyer did not give the book to the plaintiff; urer and Receiver General, 245 Mass. 504, that the plaintiff never had the book; that 507, 139 N. E. 442. The retention of the dethe book always remained with Mrs. Sawyer; posit book by Mrs. Sawyer was evidence that the plaintiff never drew or tried to draw shedding light upon her intention, but was any money from the account at the bank. not conclusive against the right of Miss BatThe plaintiff answered “Yes” to the question, tles to show by fact and circumstance the in“The money was her money?" and “No” to tention to make a present gift of a joint inthe question, “None of yours?"

terest in the deposit. Industrial Trust Co. At the close of the evidence the defend

v. Scanlon, 26 R. I. 228, 58 Atl. 786, 3 Ann. ant requested the court to rule:

Cas. 863; Marston v. Industrial Trust Co. "4. If Clara E. Sawyer intended to make a (R. I.) 107 Atl. 88. See Savings Institution gift of the fund in question in the Milbury Sav

v. Fogg, 101 Me. 188, 63 Atl. 731; McCulings Bank upon and in the event only of her lough v. Forrest, 84 N. J. Eq. 101, 92 Atl. death prior to the death of Angeline Battles, 595; Main's Appeal, 73 Conn. 638, 642, 48 then as a matter of law, the gift, being testamentary in character, is in violation of the Atl. 965; Taylor v. Coriell, 66 N. J. Eq. 262, law of wills, and the plaintiff cannot recover 268, 57 Atl. 810. the said sum.

[3] Upon the evidence above set out as a “5. If Clara E. Sawyer and Angeline Battles | fair inference of fact the jury would have intended that the fund in question in the Mill- been warranted in finding the intent of Mrs. bury Savings Bank should be a gift to Angeline Sawyer was not to give a present irrevocable Battles dependent upon and in the event only interest and title in the savings bank book of the death of Clara E. Sawyer prior to the and in the right it represented, but was that death of Angeline Battles, then as a matter of law the gift, being testamentary in character, the title, control and disposition of the fund is in violation of the law of wills, and the should remain in her (Mrs. Sawyer) until her plaintiff cannot recover the said sum."

death and that then, and in that event, the

absolute title should devolve upon Miss BatThe trial judge denied all of the requests tles. Should the jury find that such was the and the executor duly excepted.

intent of Mrs. Sawyer the gift would take After charging the jury that a gift can- effect only upon her death and would be obnot be made to take effect in the future, up- noxious to the statute of wills. Sherman v. on the contingency of death, the judge in- New Bedford Savings Bank, 138 Mass. 581. structed the jury more particularly as fol [4] It is undoubtedly true, as the plaintiff lows:

contends and as the judge in effect instruct"Now, you are not concerned in this case,

ed the jury, that as between the defendant and I am not going to instruct you whether bank and Mrs. Sawyer or Miss Battles the there has been a gift to take effect upon the right of either of them did not arise by virdeath of Mrs. Sawyer or not."

tue of a gift either at the time of the deposit

or at the time of Mrs. Sawyer's death, but The judge then proceeded to instruct the was a right in the form of a chose in action jury at length upon the question "whether or against the bank created by a contract with not both of those women entered into a the bank at the time the deposit was made; scheme and arrangement, of which this was and it may be assumed that as between the a tangible expression, to effect the transfer bank and the parties the bank would be jus. of that money only after Mrs. Sawyer's tified in treating the deposit as funds in death and therefore to cheat the statute of which the parties had a joint interest. Brad.

(145 N.E.) ford v. Eastman, 229 Mass. 499, 118 N. E., where, on evidence most favorable to plaintiff, 879.

no cause of action is shown, finding in his faThis case ceased to be an action between

vor will be disturbed. Miss Battles and the bank when the executor of Mrs. Sawyer was allowed to intervene as

Exceptions from Superior Court, Berka claimant against the fund and to show shire County; W. A. Burns, Judge. by facts and attendant circumstances that Action of contract by the Inhabitants of in law there was not a present and perfect- Lanesborough against the Inhabitants of Luded gift of a joint interest of the money when low to recover for support furnished to one it was deposited in the bank or afterward. Orrin E. Walker, alleged to be resident of The charge was inapt and unappropriate to the town of Ludlow. The court found for any issue before the jury and the exceptions plaintiffs, and defendants bring exceptions. thereto must be sustained. The case should Exceptions sustained, and judgment entered have been submitted to the jury on the issue for defendants. of a present perfected gift or of a gift to take effect after the death of Mrs. Sawyer, of Pittsfield, for plaintiffs.

W. A. Heaphy, Jr., and C. L. Hibbard, both with appropriate instructions. Exceptions sustained.

T. H. Kirkland, of Springfield, for defendants.

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CROSBY, J. This is an action of contract brought to recover for support furnished by

the plaintiffs to one Orrin Walker, a poor INHABITANTS OF LANESBOROUGH

person. The case was tried before a judge of INHABITANTS OF LUDLOW.

the superior court sitting without a jury, up

on an agreed statement of facts and the tes(Supreme Judicial Court of Massachusetts. timony of a single witness called by the plainBerkshire. Oct. 21, 1924.)

tiff. 1. Paupers Cus21(3)—"Absence" resulting in

From the undisputed facts, as shown by loss of settlement signifies physical absence. the record, it appears that Walker resided

Word "absence," as used in G. L. c. 116, 8 continuously in Ludlow from 1892 to 1897, 5, relative to loss of settlement, has its usual inclusive, and paid all taxes assessed to him and natural signification of physical absence, by that town during the years 1893 to 1897, and, if pauper fails to acquire settlement else- both inclusive. It therefore appears that he where, that circumstance is immaterial.

had acquired a settlement in that town. He [Ed. Note.-For other definitions, see Words

was married in 1887 and lived with his wife and Phrases, First and Second Series, Absence until 1890, when they separated, and she went -Absent.]

to Lanesborough and lived with her sister, 2. Statutes em 181(1) - Construed in accord- Mrs. Bradley Walker was continuously aid

ance with intention of Legislature as ex-ed by the town of Ludlow as a pauper from pressed.

1901 to 1910, and during the latter year, while Statute must be construed in accordance being so aided at the home of one Nelligan in with intention of Legislature as therein ex- Ludlow, he went to live with Mrs. Bradley, pressed.

at her request, in Lanesborough, where also 3. Paupers 21 (3)—Settlement held lost by Mrs. Walker was living. The transfer of absence.

Walker to Mrs. Bradley's home was made Where pauper left town of his settlement with the consent of the overseers of the poor in 1910, and went to live with certain person of Ludlow who agreed with Mrs. Bradley to in another town, under agreement of overseers of first town to pay for his support, and this pay her for his support. This agreement conagreement continued until 1921, settlement was

tinued from 1910 until June, 1921, when the lost by absence, under G. L. c. 116, § 5, and officials of Ludlow denied liability for Walktown where he had moved cannot recover from er's support for the first time, and notice acfirst town for support furnished.

cordingly was given to the commonwealth, 4. Paupers @ 52(6)-Agreement to pay sup

which also denied liability. port of poor person farmed out to another [1, 2] The law relating to the settlement of town not admission as to his settlement. poor persons as it had previously existed was

In agreeing to pay the support of a poor radically changed by St. 1911, c. 669, now person farmed out to person in another town, G. L. c. 116, as amended by St. 1922, c. 177, overseers of poor did not act as agents of town and St. 1922, c. 479. By G. L. c. 116, § 5, from which removed, but as public officers, and which was in force during the period in questheir action cannot be regarded as admission tion it was provided in part that: as to poor person's settlement.

“Each settlement existing on August twelfth, 5. Appeal and error w 1010(1)-Finding re nineteen hundred and eleven, shall continue in versed, where evidence does not support it. force until changed or defeated under this

While finding of judge will not be set aside, chapter, but from and after said date absence if there is any evidence to support it, yet I for five consecutive years by a person from a

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

town where he had a settlement shall defeat his settlement. New Bedford v. Taunton, 9 such settlement."

Allen, 207, and note; Bolster v. Lawrence,

225 Mass. 387, 389, 114 N. E. 722, L. R. A. This section also provides that the time (N. S.) 1917B, 1285. While the finding of the during which a person shall be an inmate of judge will not be set aside if there is any evi. an almshouse, jail, prison, or other public dence to support it, Commercial Credit Co. v. or state institution within the commonwealth, M. McDonough Co., 238 Mass. 73, 78, 130 N. or in any manner under its care or direction, E. 179; Moss v. Old Colony Trust Co., 246 or that of any officer thereof, or of a soldiers' Mass. 139, 143, 140 N. E. 803, and cases cited, or sailors' home shall not be counted in com- yet where, as in the present case, upon the puting the time either for acquiring or for evidence most favorable to the plaintiff no losing a settlement except as provided in sec- cause of action is shown to exist, the finding tion 2. The statute is plain and free from will be disturbed. ambiguity; in precise and definite language it The decision in the case of Inbabitants or provides that absence for five consecutive Brookfield v. Inhabitants of Holden, 247 years by a person from a town where he had Mass. 577, 142 N. E. 784, relied on by the a settlement shall defeat the settlement. The plaintiffs, is not inconsistent with the conword "absence" as used in the statute is to clusion reached; in that case it was held that be construed in accordance with its usual and a woman who had a settlement derived from natural signification. It means physical ab- her husband did not lose it, although his sence. If such a person by such absence fails settlement had been lost by absence from the to acquire a settlement elsewhere, that cir- commonwealth. Treasurer and Receiver Gencumstance is immaterial. The statute must eral v. Boston, 229 Mass. 83, 118 N. E. 284. be construed in accordance with the intention

It follows that the defendants' requests for of the Legislature as therein expressed. Som- rulings in substance should have been given. erville v. Commonwealth, 225 Mass. 589, 593, The entry must be: 114 N. E. 825.

Exceptions sustained. [3] As it is not disputed that Walker has

Judgment for the defendants under G. L. C. not resided in Ludlow for five consecutive 231, § 122. years, and as it is not contended that he comes within any of the exceptions set forth in the statute, it is manifest that his settlement previously acquired in Ludlow was lost, and that town cannot be charged with liability for his support in this action. See Need-BUNNELL v. VROOMAN et al. (two cases). ham v. Fitchburg, 237 Mass. 354, 129 N. E. (Supreme Judicial Court of Massachusetts. 453; People v. Maynard, 160 N. Y. 453, 459,

Berkshire. Oct. 20, 1924.) 55 N. E. 9.

1. Partnership om 153(1)-Partner authorized [4, 5] If there are any exceptions to the

to use car for pleasure not general agent for statute, except those therein expressly re

other partners, for whose negligence all are cited (and which it is unnecessary to decide), responsible. we are of opinion that, upon the agreed state

Where partners authorize use of car for ment of facts and the reported evidence, the pleasure purposes, such authorization does not defendants cannot be charged with liability. constitute partner who is using the car for his The trial judge found that "Walker's de individual pleasure general agent of remaining parture from Ludlow was not his voluntary partners, for whose negligent acts they are act; that the arrangement under which he all responsible, unless he is at time using it

in business of partnership. went to Lanesborough was with the consent of the proper authorities of Ludlow and that 2. Partnership m218(2)-Instruction, in acthis arrangement amounted to no more than tion for injuries in automobile collision, as to the 'farming out of Walker by them.

liability of partners, held erroneous. If in any case the involuntary re

In action against partners for injuries in moval from a town of a poor person could be collision with partnership car, court erred in found sufficient to defeat the operation of the not giving requested instruction to find for destatute, which we do not decide, we are of fendants if partner was using car for his own

personal pleasure and convenience, and not in opinion that in the case at bar Walker's re- partnership business, and in giving instrucmoval to Lanesborough was with his en tion interpolating phrase "or was not used for tire approval and consent. The circumstance one of the purposes for which it was purthat the officials of Ludlow consented to the chased.” arrangement and agreed to pay for his support in Lanesborough is not binding upon the

Exceptions from Superior Court, Berkshire defendants

County; W. A. Burns, Judge. In making this arrangement they acted not as agents of the town, but as Actions of tort by Minnie R. Bunnell and public officers, and such action on their part by Fred W. Bunnell, respectively, against is not to be regarded as an admission as to | Dewey W. Vrooman and others, as partners.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(145 N.E.) Verdict for plaintiffs, and defendants bring the defendants requested that the jury be exceptions. Exceptions sustained.

instructed: F. M. Myers and F. W. Bunnell, both of in this action were a partnership and that

"If it is found as a fact that the defendants Pittsfield, for plaintiffs. M. B. Warner and N. A. Foot, both of Foster P. Vrooman was owned by the partner

the car operated on the day of the accident by Pittsfield, for defendants.

ship, but was used and operated by him for his own personal pleasure and convenience and

was not being used in the partnership business, WAIT, J. The plaintiffs each brought suit then the plaintiff cannot recover in this acagainst six brothers, partners doing business tion against the partnership." under the firm name of Vrooman Bros., at

The judge denied the request and instructRotterdam or Schenectady in the state ofed the jury as follows: New York, for damages arising from a collision at Lee, Mass., between an automo

"If it is found as a fact that the defendants bile belonging to Fred W. Bunnell, then be in this action were a partnership and that the

car operated on the day of the accident by ing used and driven by his wife, Minnie R. Foster P. Vrooman was owned by the partnerBunnell, and an automobile owned by the ship, but was used and operated by him for his defendants which was alleged in each dec- own personal pleasure and convenience and was laration to have been operated by their ser- not being used in the partnership business, or vant or agent. The declarations alleged neg- was not used for one of the purposes for which ligence of the defendants and of their servant it was purchased, then the plaintiff cannot reor agent. The answers were a general de- cover in this action against the partnership." nial, lack of due care and negligence of the

At the close of the charge each of the plaintiffs contributing to the accident.

defendants claimed an exception to the re The defendants are partners in truck and fusal to charge as requested and to so much general farming on a farm near Schenectady of the charge as was inconsistent with the which was inherited by them as heirs at

request. The jury found for the plaintiff law of their father who owned and con

against the partnership. ducted the farm before them. The automo

[1] The exceptions must be sustained. The bile was registered in New York in the name

case is governed by the recent judgment in of Vrooman Bros. The application for regis- Teague v Martin, 228 Mass. 458, 117 N. E. tration stated that it was made by “Vrooman

844. Uncontradicted evidence in this case Bros., Foster P. Vrooman"; that "pleasure” shows that the partners expressly authorized was “the exact purpose for which the car

the use of their car for general purposes of will be used"; that the "age of applicant” pleasure. Such authorization does not conwas "22 years"; and, in reply to request, stitute the partner who is using the car for "If car is owned by copartnership, corpora-his individual pleasure a general agent of tion, or association, write in full the names of the remaining partners for whose negligent the members of copartnership, or the prin- acts they are all responsible, unless he is at cipal officers of the corporation or association, the time using it in the business of the giving titles of each”, it stated: “Vrooman partnership. See also Shriear v. Feigelson Bros. Dewey W., Walter W., Foster P. Vroo (Mass.) 143 N. E. 307. He is a co-owner man.” Foster P. Vrooman made oath that and as such co-owner is entitled to use the he was "one of the above-named applicants.” | car as he chooses. The other owners stand in

At the time of the accident Foster P. the relation of principals responsible for his Vrooman had taken the car for a pleasure acts as agent only when he is using the car trip to Newton, Mass., whence he was re- for the general purposes of the partnership or turning in management of the car. He

in some common enterprise. testified:

[2] We do not consider whether to secure "We would use [the car) in our business go- the individual pleasure of its members can ing back and forth to Schenectady doing er ever be of itself a sufficient purpose for the rands, etc., and used it as we wanted to for formation of a partnership. It is plain here pleasure each one of us."

that the use of the car by Foster P. Vrooman

was not within the scope of the purposes On cross-examination, he testified that he of the farming and trucking business of the drove the car in his business and also for firm of Vrooman Bros. The defendants pleasure purposes; that he had it registered were entitled to the instruction they re for pleasure purposes and used it with the quested The instruction actually given al. understanding and consent of all the broth-lowed the jury to find the defendants liable ers, who were agreeable and consented to if the car was being used by a partner for his making the trip for pleasure on this one of the purposes for which it was puroccasion. There was no other evidence that chased, although not in the scope of the the car was being used at the time of the business of the partnership. It did not coraccident in the business in which the partner- rectly state the law, and the defendants were ship was engaged or for the benefit of the prejudiced thereby. partnership. At the close of the evidence Exceptions sustained.

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