ALOYZAS ASTRAVAS, executor, vs. ANTENA PETRONIS.

HENNESSEY, J. This petition was brought by the executor of the estate of Veronika Latvenas to determine ownership of three bank accounts. At the time of the testatrix's death, the accounts, totaling approximately $30,000, stood in the names of the testatrix and the respondent "payable to either or the survivor." The petitioner appeals from a final decree ruling that the respondent is the rightful owner of the three accounts.

Since the case is before us on a report of material facts and a report of the evidence, all questions of law, fact and discretion are open for our decision. We can find facts not expressly found by the judge and, if convinced that he was plainly wrong, we can find facts contrary to his findings. Lowell Bar Assn. v. Loeb, 315 Mass. 176, 178 and cases cited. We emphasize, however, that where oral evidence is conflicting the judge is in the best position to determine the credibility of the witnesses. Barnum v. Fay, 320 Mass. 177, 180.

The facts are here set forth, as determined by us from the reported evidence and the report of material facts. The testatrix, a widow, died on May 17, 1970, at the age of eighty-four. She had emigrated from Lithuania at an early age and made her home in Athol. At her death, she had several relatives in Lithuania, a nephew in California, and another nephew, the petitioner, who resided in Melrose. For a period of some thirty-five years, the testatrix was employed as a domestic in the home of a prominent Athol industrialist. She was a very intelligent person, and she was conscientious and thrifty with her earnings. She contributed generously to her relatives, her church

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and various other religious organizations. She also assisted some of her personal friends financially. The evidence indicates that she made gifts of money to the petitioner and his children on numerous occasions and for various purposes.

The relationship between the testatrix and the respondent, the surviving joint owner, was a close one. The testatrix was her godmother and had been a close friend and companion of her mother. She visited the testatrix regularly, accompanied her to church, did her errands or went shopping with her and took her for leisurely rides. When the testatrix was ill, she took her to the doctor's office and, when she was hospitalized, visited her daily. In the testatrix's later years she was in a nursing home where the respondent visited her at least three times a week. Although the testatrix never had any children of her own, the evidence supports the finding that she treated the respondent as her own child. With respect to her financial affairs the evidence indicates that with the exception of a few instances of short duration, the testatrix placed her savings in joint accounts bearing her name and that of a friend or acquaintance. She followed this procedure for a period of almost thirty years. In 1964, the testatrix executed a will which was later revoked by a second will dated November 29, 1966, in which the petitioner was named executor. On that same day, the testatrix transferred several of her joint accounts into the joint names of herself and the petitioner and instructed him to keep the bankbooks in a safe deposit box.

Subsequently, the petitioner returned the bankbooks to the testatrix at the latter's request. The testatrix then asked the respondent to accompany her to the three banks and there instructed the teller to change the accounts so as to provide that they be held by the testatrix and the respondent as joint owners, "payable to either or the survivor." The evidence supports the finding that the testatrix in delivering these three books to the respondent stated, "I give you these as a gift" or words of similar import. At that same time, the testatrix requested

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that the respondent use the funds to pay for the testatrix's funeral. The evidence further indicates that, after the delivery of the bankbooks, the respondent retained possession of them until the testatrix's death, except for several instances, when the testatrix requested some money for some personal expenses.

On this evidence, the judge found that as to the bank accounts held in the joint names of the testatrix and certain friends and acquaintances, there was neither delivery nor an intent to make a gift of the accounts in those instances. While we disagree with his finding that there was no delivery, the evidence does support his finding that there was no donative intent in those transactions. Similarly, as to the transfer of the accounts into the joint names of the testatrix and the petitioner, the evidence supports the judge's finding that the testatrix did not intend to make a gift of the money in the accounts at that time. Finally, as to the accounts which are the subject of this controversy, the judge found that there was both a delivery and an intent to give the respondent a present interest in those accounts and ruled that the respondent was their rightful owner.

The sole question for us to determine is whether or not upon the evidence relative to the circumstances of the opening of these joint accounts the judge was warranted in finding that there was a present completed gift at the time that the respondent's name was added to the accounts. After a careful review of the record and mindful of the rule that the judge was in the best position to determine the credibility of the witnesses, we conclude that his finding was correct.

The law on the subject of joint accounts in Massachusetts has been repeatedly stated over the years. DePasqua v. Bergstedt, 355 Mass. 734, 736 and cases cited. A change in a deposit to the joint account of the former owner and another "would operate as a present and complete gift in joint ownership if she clearly intended such a result." Coolidge v. Brown, 286 Mass. 504, 507. Goldston v. Randolph, 293 Mass. 253, 256. Such a present gift

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could be made even if the former owner retained a right to withdraw funds from the account. Coolidge v. Brown, 286 Mass. 504, 507. It is well established, however, that "while the contract of deposit is conclusive as between the parties and the bank . . . nevertheless, as between the survivor and the representative of the estate of the deceased, it is still open to the latter to show by attendant facts and circumstances that the deceased did not intend to make a present completed gift of a joint interest in the account," Ball v. Forbes, 314 Mass. 200, 203-204, or that the joint account "was created only as a matter of convenience and did not constitute . . . a completed gift." Burns v. Paquin, 345 Mass. 329, 331.

Our review of the evidence leads us to the conclusion that the judge was not plainly wrong in finding that the transfers here in question were a gift. The evidence clearly establishes that the testatrix and the respondent enjoyed a long and close friendship. The testatrix was the respondent's godmother. In later years when the testatrix was in failing health, the two women drew closer. According to one witness, the testatrix, in referring to the respondent said, "She does things for me better than a daughter. If I didn't have her, I don't know what I'd do." There was other evidence to support the finding that in her later years the testatrix expressed disappointment and disapproval of the manner in which the petitioner lived and the way in which he was rearing his children. The judge warrantably found that this disappointment in the petitioner motivated the change which the testatrix made in her bank accounts. With respect to the transactions giving rise to the gift, the evidence indicates that the testatrix physically delivered the books to the respondent and, at the same time, stated that the accounts were given as a gift. On this evidence alone, the judge's finding was warranted.

The petitioner, however, argues that certain facts existing in the record render the judge's finding plainly wrong. He directs our attention to the fact that the testatrix had always placed her money in joint accounts

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as a matter of convenience and that the transfers to the respondent were of a similar nature. We disagree. While evidence of what the testatrix did in earlier years with respect to her financial affairs is relevant on the question of determining her intent in making the transfers involved here, such evidence is not controlling. The judge could warrantably find, as he did, that the earlier transactions differed from those here in that in the former no gift was intended by the testatrix nor did any joint owner believe otherwise. Furthermore, unlike the earlier accounts, the transfers to the respondent were accompanied by the physical delivery of the books.

There is also no merit to the petitioner's argument that the judge's finding was plainly wrong in view of the testimony of a witness that the testatrix explained to him that the transfers were made because she was in failing health and the respondent, unlike the petitioner, lived much closer to her should she require any money from the accounts. The judge was not required to believe the latter testimony and he obviously did not.

The petitioner also argues that a gift to the respondent was not intended by the testatrix because of the fact that she retained the right to withdraw funds from the accounts and, in fact, did make a withdrawal on at least one occasion. We have in the past, however, ruled that the reservation of a right to withdraw funds does not affect the validity of the gift. Coolidge v. Brown, 286 Mass. 504, 507. Similarly, the fact that the respondent testified that she never withdrew any money from the accounts without asking for permission to do so from the testatrix does not prevent the gift from taking effect. In view of other testimony of the respondent that she understood the transfers to be a gift, and keeping in mind the close relationship existing between these two women, such a request may have been nothing more than a thoughtful gesture from one who greatly respected the testatrix. See Mikshis v. Palionis, 345 Mass. 316, 320. Furthermore, the gift, made in the lifetime of the testatrix, was of a present interest in the accounts which did

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not ripen into full ownership until the testatrix's death. Goldston v. Randolph, 293 Mass. 253, 257.

Decree affirmed.