SERAFINO SCANZO vs. ARTHUR E. MORANO & others.

PIERCE, J. This bill of complaint seeks to establish a resulting or constructive trust in a savings bank account (number 56081) with the City Savings Bank of Pittsfield, Massachusetts. The case is before this court on the appeals of the plaintiff and of the executor of the will of Maria A. Scanzo from the "Order for Decree" and from the "final decree as entered" dismissing the bill "as to all the defendants" and the cross bill of the executor "as against all parties."

The evidence is not reported. The trial judge made findings of fact and rulings of law. From these findings it appears that the plaintiff was the husband of Maria Antonio Scanzo who died April 13, 1932, and that the defendant Patrick Scanzo is executor of her will. The maiden name of the wife of the plaintiff was Maria Antonio Trincilita. Her first husband was Nicola Morano by whom she had two sons, the defendant Arthur E. Morano and Alfred Morano. The plaintiff and Maria were married in New York in March, 1902. They lived there four or five months, then lived in Coxsackie, New York, about two months and then came to Pittsfield, where they lived together until Maria's death in 1932. The plaintiff worked as a mason's helper, gave the wages he earned to Maria, who paid the household expenses. On July 31, 1905, a savings account (number 5348) was opened in the name of Maria Antonio Trincilita in the City Savings Bank of Pittsfield. This account was opened with a deposit of $250 which was derived from the "joint earnings and savings of plaintiff and Maria and with some money earned by defendant Morano who was a member of the household." The defendant Morano "was eleven years old when he arrived in the United States, [he] went to school for about two years, working while attending school and giving earnings to his mother Maria. He left school in 1899 or 1900 and since that time has had almost steady employment"; he "lived with plaintiff and Maria except when employed outside of Pittsfield, gave Maria money from time to time and particularly from 1900 up to 1910-1912 when he had savings accounts in his own name, contributed groceries occasionally, up to the time of

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his marriage in 1922; as well as giving money to Maria." By her marriage to the plaintiff Maria had two children. "These children worked and earned money which was turned over to Maria."

In 1907 the plaintiff and Maria "bought a house and lot and all the money in the aforesaid account . . . then amounting to $767.69 was drawn out and applied on purchase price." This real estate was sold on August 4, 1923; the proceeds from that sale started account number 109042 with the Berkshire County Savings Bank in the names of Serafino Scanzo and Maria Antonio Scanzo. After the death of Maria this account was closed, on April 18, 1932, with deposits and interest then amounting to $2,484.57. Stamped on said book appear the words "Payable to either or survivor of either."

The account number 5348 was not closed, and in October, 1907, a deposit of $150 was made, presumably by Maria. Thereafter deposits were made between February 17, 1908, and October 23, 1909, of sums totalling $769.48. October 23, 1909, was the last date on which a deposit was made in this account, which then "amounted to $946.24." Thereafter withdrawals were made in March and June, 1915, to the amount of $147, leaving a balance on June 1, 1915, of $1,020.04 which, with the accumulated dividends, amounted to $1,434.83 on May 24, 1923.

On the last named date the defendant Morano, at his mother's request, went to the City Savings Bank with her "to have your (Morano's) name put on the book." "An employee of the bank suggested a trustee account and accordingly a new book was made out in the name of Mrs. Maria A. Scanzo Trustee for Arthur E. Morano and the then balance of $1,434.83 was entered on said book .... No deposits or withdrawals have since been made and on January 10, 1931, the account amounted to $2,063.22 which with its accumulated dividends since that date is now claimed by plaintiff and by the executor of the will of said Maria." This trustee account bore the number 56081. "When the account was placed in. the name of Maria A. Scanzo, Trustee for Arthur E. Morano (defendant) the bank

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book was handed to him [Morano] and he 'gave it to . . . [his] mother so she could get the interest.' In 1929 Maria told defendant Morano she would give him the bank book if he wanted it."

In July, 1931, wills were drawn by the plaintiff and Maria. Maria showed five bank books, "and when asked as to a sixth book (meaning City Savings Bank book number 56081, the account on which this action is based) said the book 'had same name as the rest.'" These five accounts may be scheduled as follows: (1) City Savings Bank number 19259 opened June 15, 1912, in the name of the plaintiff, described therein as "Serafino Scalzo"; (2) Pittsfield National Bank savings department number 1844, opened June 15,1920, in the names of "Serafino Scanzo and Mariatonia Scanzo"; this account on May 20, 1922, amounted to $362.60 and this amount was withdrawn on that date but the account was not closed; a deposit of $100 was made January 16, 1923, and the deposits and accumulated dividends amounted to $2,682.64 on April 18, 1932, on which date the account was closed, five days after the death of Maria; (3) Pittsfield National Bank savings department number 11392 opened August 6, 1927, in the names of "Serafino Scanzo or - Mariatonia Scanzo" with a deposit of $400; interest amounting to $23.44 was withdrawn August 7, 1929, and $210 was withdrawn October 5, 1931; the balance, with accumulated interest, was withdrawn and the account closed on April 18, 1932, five days after the death of Maria; (4) Berkshire County Savings Bank number 109042, opened August 6,1923, in the names of "Serafino and Maria Antonia Scanzo," and closed after the death of Maria on April 18, 1932; the words "Payable to either or survivor of either" were stamped on the savings bank book; and (5) Berkshire County Savings Bank number 67647 opened in the name of "Serafino Scalso payable to wife Marie A."; this account was closed April 18, 1932, with deposits and interest then amounting to $2,394.52. Besides the "sixth book," the account on which this action is based, there was another account with the Berkshire County Savings Bank number 81651 opened May 16, 1914,

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in the names of Mary Scanzo, Serafino Scanzo trustees for their daughter Marie A. Scanzo. This account was closed October 31, 1918, by an order payable to Agricultural National Bank signed "Marie Scanzo now Mrs. Marie C. D'Angelo." The judge further found that the "Plaintiff is unable to read or write in either English or Italian or to sign his name."

"From the facts heretofore found and the inferences drawn" the trial judge found and ruled that the money in the account in dispute, viz., City Savings Bank of Pittsfield number 56081, which account was originally number 5348, amounting to $2,063.22 on January 10, 1931, came from earnings of the plaintiff and earnings and savings of his wife Maria, and money handed her from time to time up to 1910 by the defendant Morano; that the defendant Morano gave money to his mother after 1910 but that the same was not deposited in this account. He states: "There is no evidence on which I can find how much each contributed. I find that plaintiff 'believed' or 'supposed' this account to be in the names of himself and his wife Maria" and that the plaintiff was "satisfied to have it that she could draw as well as I [the plaintiff] could draw." The trial judge also found "There is no evidence from which I find fraud on her [Maria's] part in not starting the account in their joint names"; "that she was constantly enjoining all her children to work and save and turn the money over to her and that all did so, and that she said she would put it in the bank for them." The judge rightly denied the plaintiff's requests as inconsistent with the facts found.

The defendant executor presents no brief nor oral argument in support of his counter claim that "the deposit in trust for Arthur E. Morano . . . was void as an incompleted gift ... or as a testamentary disposition in violation of the statute of wills." The trial judge ruled "that there was a completed gift to the defendant Morano of the deposit in suit, and that there had been no violation of the statute of wills." The plaintiff properly contends that "The court nowhere finds that the defendant Morano is entitled to the deposit or any portion of it by virtue of it being charged with

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any trust in his favor, but merely on the ground of . . . 'a completed gift' by Maria to Morano" and therefrom draws the logical conclusion that whether or not the defendant Morano is entitled to any portion of this deposit would depend on whether the gift was completed and whether Maria could make the gift or any portion of it. Assuming the deposit in whole or in part was in the legal disposition of Maria, free from any claim of the plaintiff, it is plain the judge was warranted in finding as a fact and in ruling as matter of law that a fully executed gift inter vivas was created when Maria handed the savings bank book to Morano even though Morano handed the book back "so she could get the interest." Gerrish v. New Bedford Institution for Savings, 128 Mass. 159, 161. Jones v. Old Colony Trust Co. 251 Mass. 309, 313. Wilson v. Jones, 280 Mass. 488, 495.

The more important question is what interest had Maria in the savings bank account number 56081 when that account became a trust account for the benefit of the defendant Morano. On the facts found all the money deposited by Maria in the City Savings Bank in 1905 in her maiden name was withdrawn, in 1907, and invested in real estate which, in turn, was sold, in 1923, and the proceeds deposited in the Berkshire County Savings Bank in the names of Serafino and Maria Antonio Scanzo, where it remained until after the death of Maria and was then withdrawn by the plaintiff in his capacity of survivor. This .account (number 56081, formerly number 5348) was not closed with the withdrawal but a deposit was made in October, 1907, and at different times until October 23, 1909. These deposits came from earnings of the plaintiff, earnings and savings of his wife arid money handed to her from time to time up to 1910 by the defendant Morano. In 1907, Morano was twenty or twenty-one years of age. He was married in 1922. The judge could not determine how much each contributed. The practical operation of the intention of the plaintiff applied to this particular account would have the force of a gift, and the facts do not rebut the presumption that the money earned by the plaintiff was intended as a gift.

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Springfield Institution for Savings v. Copeland, 160 Mass. 380, 383. If there was no gift the bill of complaint to establish a resulting or constructive trust in the deposit in the City Savings Bank would have to be dismissed because, as a resulting trust, there is no determination of the interest of the plaintiff in the deposited fund and no fraud to establish a constructive trust in that fund. Kennerson v. Nash, 208 Mass. 393, 398. Druker v. Druker, 268 Mass. 334. Daniels v. Daniels, 240 Mass. 380, 385. Pollock v. Pollock, 223 Mass. 382. See O'Brien v. O'Brien, 256 Mass, 308, 310.

Decrees affirmed with costs.