Bancroft v. Russell

The St. of 1887, c. 214, § 73, and the Pub. Sts. c. 119, § 167, do not control this case. Although undoubtedly in the event which has happened Mr. Bancroft is the person to whom the money was payable, yet by the terms of the policy it was payable to him as “ trustee for Harriet Prescott,” and the question is what is the nature of the trust. It is settled that a trust in personal property can be shown by oral testimony, and the word “ trustee ” does not conclusively define the nature of the trust. Davis v. Coburn, 128 Mass. 377. Chace v. Chapin, 130 Mass. 128. Chase v. Perley, 148 Mass. 289. On the face of the policies, the money was not to be paid by the insurance company, in any event, to Harriet Prescott; it was to be paid to the *50assured, William Proctor, on June 17, 1904, if he lived till that time; but if he died before that time, then to “ Solon Bancroft, . . . trustee for Harriet Prescott.” William Proctor survived Harriet Prescott,.who was his mother, and died on October 23,1889. There is no written declaration of the nature of the trust, and it does not appear that William Proctor made any statement of the nature of the trust to Harriet Prescott, or even that she knew of the existence of the policies. It is agreed, if it is competent, that the plaintiff would testify “ that said Proctor in his lifetime made oral statements that his design in creating said trust was that from the proceeds of said policies the care and support of his mother should be continued after his decease, which evidence shall be taken as true,” and that for many years before and up to the time of her decease he had been accustomed to furnish a large part of “ all that was needed for her comfort.” We are not required to consider whether, if the trust when created had been declared to be of a certain nature, and this had been communicated to and accepted by the cestui que trust, and no power to revoke or modify the trust had been reserved, it could be modified or revoked bjr subsequent declarations of the donor. We assume that it could not. We infer that the statements referred to in the agreed statement of facts were statements to the trustee, and constituted substantially the only statements by the donor of his intention in creating the trust. We think they are competent, and, in connection with the other facts agreed, show that the trust, was, that if William Proctor died before June 17,1904, the proceeds of the policies should be used by the trustee for the care and support of Harriet Prescott. Whether, if she had survived him, she would have been entitled to the whole proceeds, or only to such part as might be necessary for her support we need not decide. Clark v. Clark, 108 Mass. 522. Chace v. Chapin, 130 Mass. 128. Fuller v. Linzee, 135 Mass. 468. Scott v. Berkshire County Savings Bank, 140 Mass. 157. Parkman v. Suffolk Savings Bank, 151 Mass. 218. We are of opinion that, as she died before William Proctor, there is a resulting trust in favor of him, and that the proceeds of the policies are a part of his estate.

Decree accordingly.