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(145 N.E.)

774; Carriere v. Merrick Lumber Co., 203 Mass. 322, 327, 89 N. E. 544; Marcy v. Shelburne Falls & Colrain Street Railway, 210 Mass. 197, 199, 96 N. E. 130; Freeman's Case, 233 Mass. 287, 291, 123 N. E. 845.

It follows from all that has been said that the demurrer was overruled rightly. Decree affirmed with costs.

BATTLES v. MILLBURY SAVINGS BANK et al.

(Supreme Judicial Court of Massachusetts.

Worcester. Oct. 21, 1924.)

1. Gifts 30(4)-Deposit in savings bank to joint account would operate as complete gift in joint ownership, if so intended.

Deposit in savings bank by one to joint account of himself and another would operate as present and complete gift in joint ownership, if depositor clearly intended such result. 2. Gifts 49(5)-Retention of deposit book by Joint depositor not conclusive against right of other to show intention to make present gift.

PIERCE, J. This is an action of contract to recover the amount of a deposit of $2,000, with accrued interest thereon, made in the defendant bank on the 11th day of October, 1920, in the name of Clara E. Sawyer or AnThe defendant Marvin M. geline Battles. Taylor, executor of the will of Clara E. Sawyer, 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.

The material and undisputed facts, disclosed by the record are that the plaintiff, nearly 80 years old at the time of the trial in 1924, went to Millbury, Mass., every summer to visit her half-sister and the daughter of her half-sister, Mrs. Sawyer; that they were very good friends; that Mrs. Sawyer died April 19, 1921, aged about 65 years; that the plaintiff visited her half-sister and Mrs. Sawyer in 1920 from June until October; that she intended to have gone homé the week before she did, but stayed over because Mrs. Sawyer wanted her to stay so that she (Mrs. Sawyer) could go to Worcester and see about depositing the money, and that she could not leave her mother alone; that Mrs. Sawyer went to Worcester one day and when she returned she had a conver

Retention of deposit book by deceased after having made deposit to herself and another jointly was evidence shedding light on her in-sation with the plaintiff and showed her a tention, but was not conclusive against right of other to show intention to make present gift of joint interest in deposit.

3. Wills 90-Joint deposit, intended as gift on death, obnoxious to statute of wills.

Deposit by deceased in name of herself and another jointly, if intended as a gift to take effect at her death, is obnoxious to statute of wills.

4. Banks and Banking 129-Rule stated as to nature of right arising under deposit by one in name of herself and another.

Where one placed money in savings bank in name of herself and another, as between bank and joint depositors, right of either did not arise by virtue of gift either at time of deposit or at time of depositor's death, but was right in form of chose in action against bank created by contract with bank.

bank book; that the plaintiff did not take it in her hand, but Mrs. Sawyer held it so that the plaintiff saw it and saw that the book was "made out to our names and $2,000 and date." A savings bank book No. 16420, issued by the Millbury Savings Bank, showing a deposit of $2,000 on October 11, 1920, in the name of "Clara E. Sawyer or Angeline Battles," was identified by the plaintiff as the savings bank book shown her by Mrs. Sawyer, and it was admitted in evidence. The record discloses that on Mrs. Sawyer's return she said to the plaintiff "she had been in and deposited some money on joint account of herself and [Miss Battles]; that the plaintiff replied, "You will probably outlive me," and Mrs. Sawyer answered, "I am not sure. I don't know about that." In crossexamination 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.

Action of contract by Angeline Battles against the Millbury Savings Bank to recover deposit made in name of "Clara E. Sawyer or Angeline Battles," in which Marvin M. Taylor, executor of the will of Clara E. Sawyer, deceased, was made defendant. jury found for plaintiff, and the executor brings exceptions. Exceptions sustained.

The

L. E. Stockwell, of Worcester, for plaintiff.
M. M. Taylor, of Worcester, for defend-

ants.

live me'?" answered. "When she deposited the money she said she made a joint account of it." She further testified that she made

than I'

the remark." "You will probably live longer * because [she] knew [Mrs. Sawyer] had deposited [the money] in case she passed away before [the plaintiff] did"; that she understood it had been deposited in case Mrs. Sawyer passed away before she (the plaintiff) did. The witness testified, in answer to the question, "Didn't she say something to that effect?" "That was all I said and all she said." To

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the question, "Didn't she say something to the effect that she had deposited it so that you would have it if she passed away?" the plaintiff answered: "That was ail. When she came in with the book she showed it to me and she said she had done that, that is what passed between us." To the question, "Didn't she say something to the effect that she had done it so you would have the money if she passed away first?" the plaintiff answered: "She didn't say anything, but I supposed she understood it." To the question, "You understood it?" she answered, "Yes;" and "Yes" to the question, "Then you made the remark 'You will probably outlive me'?" It further appeared that Mrs. Sawyer gave the plaintiff "A card to be signed," which was put in evidence; that the plaintiff signed it "Angeline Battles; residence, Plymouth;" that there was no other writing on the card and that Mrs. Battles inferred Mrs. Sawyer took it to the bank; that Mrs. Sawyer did not give the book to the plaintiff; that the plaintiff never had the book; that the book always remained with Mrs. Sawyer; that the plaintiff never drew or tried to draw any money from the account at the bank. The plaintiff answered "Yes" to the question, "The money was her money?" and "No" to the question, "None of yours?"

At the close of the evidence the defendant requested the court to rule:

"4. If Clara E. Sawyer intended to make a gift of the fund in question in the Milbury Savings Bank upon and in the event only of her death prior to the death of Angeline Battles, then as a matter of law, the gift, being testamentary in character, is in violation of the law of wills, and the plaintiff cannot recover the said sum.

“5. If Clara E. Sawyer and Angeline Battles intended that the fund in question in the Millbury Savings Bank should be a gift to Angeline Battles dependent upon and in the event only of the death of Clara E. Sawyer prior to the death of Angeline Battles, then as a matter of law the gift, being testamentary in character, is in violation of the law of wills, and the plaintiff cannot recover the said sum."

wills and the commonwealth out of any money that might be coming due it in the shape of taxes," and further instructed the jury, "that to prevent the plaintiff from recovering both she and Mrs. Sawyer must be shown as parties to some scheme to do nothing else in this case except to circumvent and get around the statute of wills controlling the disposition of Mrs. Sawyer's property."

[1, 2] The refusal of the judge to give the requested rulings was error. As a matter of law Mrs. Sawyer could legally deposit money in a savings bank to the joint account of herself and Miss Battles, which 'deposit would operate as a present and complete gift in joint ownership if Mrs. Sawyer clearly intended such a result. Attorney General v. Clark, 222 Mass. 291, 110 N. E. 299, L. R. A. 1916C, 679, Ann. Cas. 1917B, 119; Chippendale v. North Adams Savings Bank, 222 Mass. 499, 111 N. E. 371; Marble v. Treasurer and Receiver General, 245 Mass. 504, 507, 139 N. E. 442. The retention of the deposit book by Mrs. Sawyer was evidence shedding light upon her intention, but was not conclusive against the right of Miss Battles to show by fact and circumstance the intention to make a present gift of a joint interest in the deposit. Industrial Trust Co. v. Scanlon, 26 R. I. 228, 58 Atl. 786, 3 Ann. Cas. 863; Marston v. Industrial Trust Co. (R. I.) 107 Atl. 88. See Savings Institution v. Fogg, 101 Me. 188, 63 Atl. 731; McCullough v. Forrest, 84 N. J. Eq. 101, 92 Atl. 595; Main's Appeal, 73 Conn. 638, 642, 48 Atl. 965; Taylor v. Coriell, 66 N. J. Eq. 262, 268, 57 Atl. 810.

[3] Upon the evidence above set out as a fair inference of fact the jury would have been warranted in finding the intent of Mrs. Sawyer was not to give a present irrevocable interest and title in the savings bank book and in the right it represented, but was that the title, control and disposition of the fund should remain in her (Mrs. Sawyer) until her death and that then, and in that event, the absolute title should devolve upon Miss Bat

The trial judge denied all of the requests tles. and the executor duly excepted.

After charging the jury that a gift cannot be made to take effect in the future, upon the contingency of death, the judge instructed the jury more particularly as follows:

"Now, you are not concerned in this case, and I am not going to instruct you whether there has been a gift to take effect upon the death of Mrs. Sawyer or not."

The judge then proceeded to instruct the jury at length upon the question "whether or not both of those women entered into a scheme and arrangement, of which this was a tangible expression, to effect the transfer of that money only after Mrs. Sawyer's death and therefore to cheat the statute of

Should the jury find that such was the intent of Mrs. Sawyer the gift would take effect only upon her death and would be obnoxious to the statute of wills. Sherman v. New Bedford Savings Bank, 138 Mass. 581.

[4] It is undoubtedly true, as the plaintiff contends and as the judge in effect instructed the jury, that as between the defendant bank and Mrs. Sawyer or Miss Battles the right of either of them did not arise by virtue of a gift either at the time of the deposit or at the time of Mrs. Sawyer's death, but was a right in the form of a chose in action against the bank created by a contract with the bank at the time the deposit was made; and it may be assumed that as between the bank and the parties the bank would be justified in treating the deposit as funds in which the parties had a joint interest. Brad

(145 N. E.)

ford v. Eastman, 229 Mass. 499, 118 N. E. 879.

This case ceased to be an action between Miss Battles and the bank when the executor of Mrs. Sawyer was allowed to intervene as a claimant against the fund and to show by facts and attendant circumstances that in law there was not a present and perfected gift of a joint interest of the money when it was deposited in the bank or afterward. The charge was inapt and unappropriate to any issue before the jury and the exceptions thereto must be sustained. The case should have been submitted to the jury on the issue of a present perfected gift or of a gift to take effect after the death of Mrs. Sawyer, with appropriate instructions. Exceptions sustained.

INHABITANTS OF LANESBOROUGH
INHABITANTS OF LUDLOW.

(Supreme Judicial Court of Massachusetts. Berkshire. Oct. 21, 1924.)

V.

1. Paupers 21 (3)—“Absence" resulting in loss of settlement signifies physical absence. Word "absence," as used in G. L. c. 116, § 5, relative to loss of settlement, has its usual and natural signification of physical absence, and, if pauper fails to acquire settlement elsewhere, that circumstance is immaterial.

where, on evidence most favorable to plaintiff, no cause of action is shown, finding in his favor will be disturbed.

Exceptions from Superior Court, Berkshire County; W. A. Burns, Judge.

Action of contract by the Inhabitants of Lanesborough against the Inhabitants of Ludlow to recover for support furnished to one Orrin E. Walker, alleged to be resident of the town of Ludlow. The court found for plaintiffs, and defendants bring exceptions. Exceptions sustained, and judgment entered for defendants.

of Pittsfield, for plaintiffs.
W. A. Heaphy, Jr., and C. L. Hibbard, both

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

CROSBY, J. This is an action of contract brought to recover for support furnished by the plaintiffs to one Orrin Walker, a poor person. The case was tried before a judge of the superior court sitting without a jury, upon an agreed statement of facts and the testimony of a single witness called by the plaintiff.

From the undisputed facts, as shown by the record, it appears that Walker resided continuously in Ludlow from 1892 to 1897, inclusive, and paid all taxes assessed to him by that town during the years 1893 to 1897, both inclusive. It therefore appears that he had acquired a settlement in that town. He was married in 1887 and lived with his wife until 1890, when they separated, and she went to Lanesborough and lived with her sister, Mrs. Bradley. Walker was continuously aidex-ed by the town of Ludlow as a pauper from 1901 to 1910, and during the latter year, while being so aided at the home of one Nelligan in Ludlow, he went to live with Mrs. Bradley, at her request, in Lanesborough, where also

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Absence -Absent.]

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2. Statutes ~181 (1) - Construed in accordance with intention of Legislature as pressed.

Statute must be construed in accordance with intention of Legislature as therein expressed.

3. Paupers 21 (3)-Settlement held lost by Mrs. Walker was living. The transfer of absence.

Where pauper left town of his settlement in 1910, and went to live with certain person in another town, under agreement of overseers of first town to pay for his support, and this agreement continued until 1921, settlement was lost by absence, under G. L. c. 116, § 5, and town where he had moved cannot recover from first town for support furnished.

4. Paupers 52(6)—Agreement to pay support of poor person farmed out to another town not admission as to his settlement.

In agreeing to pay the support of a poor person farmed out to person in another town, overseers of poor did not act as agents of town from which removed, but as public officers, and their action cannot be regarded as admission as to poor person's settlement.

5. Appeal and error 1010(1)-Finding reversed, where evidence does not support it. While finding of judge will not be set aside, if there is any evidence to support it, yet

Walker to Mrs. Bradley's home was made with the consent of the overseers of the poor of Ludlow who agreed with Mrs. Bradley to pay her for his support. This agreement continued from 1910 until June, 1921, when the officials of Ludlow denied liability for Walker's support for the first time, and notice accordingly was given to the commonwealth, which also denied liability.

[1, 2] The law relating to the settlement of poor persons as it had previously existed was radically changed by St. 1911, c. 669, now G. L. c. 116, as amended by St. 1922, c. 177, and St. 1922, c. 479. By G. L. c. 116, § 5, which was in force during the period in question it was provided in part that:

"Each settlement existing on August twelfth, nineteen hundred and eleven, shall continue in force until changed or defeated under this chapter, but from and after said date absence for five consecutive years by a person from a

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town where he had a settlement shall defeat | his settlement. such settlement."

This section also provides that the time during which a person shall be an inmate of an almshouse, jail, prison, or other public or state institution within the commonwealth, or in any manner under its care or direction, or that of any officer thereof, or of a soldiers' or sailors' home shall not be counted in computing the time either for acquiring or for losing a settlement except as provided in section 2. The statute is plain and free from ambiguity; in precise and definite language it provides that absence for five consecutive years by a person from a town where he had a settlement shall defeat the settlement. The word "absence" as used in the statute is to be construed in accordance with its usual and natural signification. It means physical absence. If such a person by such absence fails to acquire a settlement elsewhere, that circumstance is immaterial. The statute must be construed in accordance with the intention of the Legislature as therein expressed. Somerville v. Commonwealth, 225 Mass. 589, 593, 114 N. E. 825.

[3] As it is not disputed that Walker has not resided in Ludlow for five consecutive 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 Needham v. Fitchburg, 237 Mass. 354, 129 N. E. 453; People v. Maynard, 160 N. Y. 453, 459, 55 N. E. 9.

*

[4, 5] If there are any exceptions to the statute, except those therein expressly recited (and which it is unnecessary to decide), we are of opinion that, upon the agreed statement of facts and the reported evidence, the defendants cannot be charged with liability. The trial judge found that "Walker's departure from Ludlow was not his voluntary act; that the arrangement under which he went to Lanesborough was with the consent of the proper authorities of Ludlow and that this arrangement amounted to no more than the 'farming out' of Walker by them. If in any case the involuntary removal from a town of a poor person could be found sufficient to defeat the operation of the statute, which we do not decide, we are of opinion that in the case at bar Walker's removal to Lanesborough was with his entire approval and consent. The circumstance that the officials of Ludlow consented to the arrangement and agreed to pay for his support in Lanesborough is not binding upon the defendants. In making this arrangement they acted not as agents of the town, but as public officers, and such action on their part is not to be regarded as an admission as to

New Bedford v. Taunton, 9 Allen, 207, and note; Bolster v. Lawrence, 225 Mass. 387, 389, 114 N. E. 722, L. R. A. (N. S.) 1917B, 1285. While the finding of the judge will not be set aside if there is any evidence to support it, Commercial Credit Co. v. M. McDonough Co., 238 Mass. 73, 78, 130 N. E. 179; Moss v. Old Colony Trust Co., 246 Mass. 139, 143, 140 N. E. 803, and cases cited, yet where, as in the present case, upon the evidence most favorable to the plaintiff no cause of action is shown to exist, the finding will be disturbed.

The decision in the case of Inhabitants of Brookfield v. Inhabitants of Holden, 247 Mass. 577, 142 N. E. 784, relied on by the plaintiffs, is not inconsistent with the conclusion reached; in that case it was held that a woman who had a settlement derived from her husband did not lose it, although his settlement had been lost by absence from the commonwealth. Treasurer and Receiver General v. Boston, 229 Mass. 83, 118 N. E. 284.

It follows that the defendants' requests for rulings in substance should have been given. The entry must be:

Exceptions sustained.

Judgment for the defendants under G. L. c. 231, § 122.

BUNNELL v. VROOMAN et al. (two cases). (Supreme Judicial Court of Massachusetts. Berkshire. Oct. 20, 1924.)

1. Partnership 153(1)-Partner authorized to use car for pleasure not general agent for other partners, for whose negligence all are responsible.

Where partners authorize use of car for pleasure purposes, such authorization does not constitute partner who is using the car for his individual pleasure general agent of remaining partners, for whose negligent acts they are all responsible, unless he is at time using it in business of partnership.

2. Partnership 218(2)—Instruction, in action for injuries in automobile collision, as to liability of partners, held erroneous.

In action against partners for injuries in collision with partnership car, court erred in not giving requested instruction to find for defendants if partner was using car for his own personal pleasure and convenience, and not in partnership business, and in giving instruction interpolating phrase "or was not used for one of the purposes for which it was purchased."

Exceptions from Superior Court, Berkshire County; W. A. Burns, Judge.

Actions of tort by Minnie R. Bunnell and by Fred W. Bunnell, respectively, against 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.

F. M. Myers and F. W. Bunnell, both of Pittsfield, for plaintiffs.

M. B. Warner and N. A. Foot, both of Pittsfield, for defendants.

WAIT, J. The plaintiffs each brought suit against six brothers, partners doing business under the firm name of Vrooman Bros., at Rotterdam or Schenectady in the state of New York, for damages arising from a collision at Lee, Mass., between an automo

bile belonging to Fred W. Bunnell, then being used and driven by his wife, Minnie R. Bunnell, and an automobile owned by the defendants which was alleged in each declaration to have been operated by their servant or agent. The declarations alleged negligence of the defendants and of their servant or agent. The answers were a general denial, lack of due care and negligence of the plaintiffs contributing to the accident.

The defendants are partners in truck and general farming on a farm near Schenectady which was inherited by them as heirs at law of their father who owned and conducted the farm before them. The automobile was registered in New York in the name of Vrooman Bros. The application for registration stated that it was made by "Vrooman Bros., Foster P. Vrooman"; that "pleasure" was "the exact purpose for which the car will be used"; that the "age of applicant" was "22 years"; and, in reply to request, "If car is owned by copartnership, corporation, or association, write in full the names of the members of copartnership, or the principal officers of the corporation or association, giving titles of each", it stated: "Vrooman Bros. Dewey W., Walter W., Foster P. Vrooman." Foster P. Vrooman made oath that he was "one of the above-named applicants." At the time of the accident Foster P. Vrooman had taken the car for a pleasure trip to Newton, Mass., whence he was returning in management of the car. He testified:

“We would use [the car] in our business going back and forth to Schenectady doing errands, etc., and used it as we wanted to for pleasure each one of us.”

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instructed:

in this action were a partnership and that "If it is found as a fact that the defendants Foster P Vrooman was owned by the partnerthe car operated on the day of the accident by ship, but was used and operated by him for his own personal pleasure and convenience and was not being used in the partnership business, then the plaintiff cannot recover in this action against the partnership."

The judge denied the request and instructed the jury as follows:

"If it is found as a fact that the defendants

in this action were a partnership and that the Foster P. Vrooman was owned by the partnercar operated on the day of the accident by ship, but was used and operated by him for his own personal pleasure and convenience and was not being used in the partnership business, or was not used for one of the purposes for which it was purchased, then the plaintiff cannot recover in this action against the partnership."

At the close of the charge each of the defendants claimed an exception to the refusal to charge as requested and to so much of the charge as was inconsistent with the request. The jury found for the plaintiff against the partnership.

[1] The exceptions must be sustained. The case is governed by the recent judgment in Teague v. Martin, 228 Mass. 458, 117 N. E. 844.

Uncontradicted evidence in this case shows that the partners expressly authorized the use of their car for general purposes of pleasure. Such authorization does not constitute the partner who is using the car for his individual pleasure a general agent of the remaining partners for whose negligent acts they are all responsible, unless he is at the time using it in the business of the partnership. See also Shriear v. Feigelson (Mass.) 143 N. E. 307. He is a co-owner and as such co-owner is entitled to use the car as he chooses. The other owners stand in the relation of principals responsible for his acts as agent only when he is using the car for the general purposes of the partnership or in some common enterprise.

[2] We do not consider whether to secure the individual pleasure of its members can ever be of itself a sufficient purpose for the formation of a partnership. It is plain here 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 refor pleasure purposes and used it with the quested The instruction actually given alunderstanding 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 occasion. There was no other evidence that the car was being used at the time of the accident in the business in which the partnership was engaged or for the benefit of the partnership. At the close of the evidence

one of the purposes for which it was purchased, although not in the scope of the business of the partnership. It did not correctly state the law, and the defendants were prejudiced thereby.

Exceptions sustained.

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