plea on hearing is allowed, the bill is not, ROWELL, C. J. This is assumpsit for as of course, dismissed. Chancery Rule 17. money had and received. The question deThese rules introduce no new principles, for terminative of the right is whether by the as this court said in Dietrich v. Hutchinson, law of Massachusetts a deposit of $1,000 81 Vt. 160, 167, 69 Atl. 661, 663: "The rules of his own money made by Darius F. Bradley concerning pleas in equity are so strict and the 27th of May, 1908, in his own name in the technical, and the danger of injustice often | Suffolk Savings Bank in Boston, where he arising from them so great, that the court then lived, in trust for the plaintiff, was has always exercised its discretion respecting them, and in many cases when they are not overruled will not allow them to have the full effect of pleas." Indeed, they have such effect only as they ought to have.

[8] And, where a plea is directed to the want of proper parties, the discretion of the court will generally be so exercised that the complainant may amend by bringing in new parties or by excusing himself from joining them. Case v. Minot, 158 Mass. 577, 33 N. E. 700, 22 L. R. A. 536; Cook v. Mancius, 3 Johns. Ch. (N. Y.) 427.

The decree adjudging the plea good and sufficient is affirmed. But the decree dismissing the bill pro forma is reversed, and the cause is remanded.

(85 Vt. 412)

BRADLEY v. BENTLEY

then or ever so perfected as to pass title to her as a gift. At the time of the deposit Mr. Bradley signed a record card presented to him by a clerk thus: "Darius F. Bradley, Tr. for N. Myrtie Bradley." Whereupon the clerk filled out the card from information given to him by Mr. Bradley, and gave him a pass book for the deposit, entering therein: "Darius F. Bradley, Tr. for N. Myrtie Bradley." The defendant drew the deposit from the bank July 1, 1909, on an order from Mr. Bradley, and claimed to have paid out the money on his orders, having none of it herself. The plaintiff first learned about this deposit in March, 1910, which was about eight months after Mr. Bradley's death, and I called on the defendant for the money in June, 1910. There was no evidence tending to show that Mr. Bradley ever said anything to the plaintiff about the deposit, nor to any one acting for her and for her benefit, and

(Supreme Court of Vermont. Franklin. Feb. he never parted with the possession and con

9, 1912.)

1. GIFTS (8 2*)-WHAT LAW GOVERNS.

The law of Massachusetts governs in determining whether there was a perfected gift of a deposit in a Massachusetts bank in the

depositary's name as trustee for another.
[Ed. Note.-For other cases, see Gifts, Cent.
Dig. 1; Dec. Dig. § 2.*]

2. APPEAL AND ERROR (§ 1048*)-HARMLESS
ERROR-ADMISSION OF EVIDENCE.

Any error in admitting a hypothetical question to an expert testifying as to the law of another state, which assumed as true what plaintiff's testimony tended to show, and inquired whether such facts constituted a gift or trust under the laws of such other state, was harmless, where such evidence did not tend to support plaintiff's case.

trol of the pass book further than to put it into a safety box in the Old Colony Trust Company with his other securities, and to obtain it therefrom and draw the money thereon by others acting for him and on his

written orders. Under the by-laws of the bank, no one could draw the money on the book without presenting it.

The only evidence of the law of Massachusetts on this question was the testimony of Mr. Gardner, a Massachusetts lawyer, and eight cases in the Massachusetts reports, six introduced by the defendant, and two by the plaintiff in rebuttal. Those introduced by the defendant were Brabrook v. Boston Five Cents Savings Bank, 104 Mass. 228, 6 Am. Rep.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4140-4145, 4151, 4158-222; Clark v. Clark, 108 Mass. 522; Cleveland 4160; Dec. Dig. § 1048.*]

3. TRIAL (§ 136*)-PROVINCE OF COURt.

If there is no conflict in the facts, the construction of judicial decisions of a foreign state, to determine the law for that state, is for the court, and not for the jury.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 318, 320, 321, 324, 326, 327; Dec. Dig. $136.*1

Exceptions from Franklin County Court; Zed S. Stanton, Judge.

Action by N. Myrtie Bradley against Jane S. Bentley. From a judgment for defendant, plaintiff excepts. Judgment affirmed. Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POW

ERS, JJ.

v. Hampden Savings Bank, 182 Mass. 110, 65 N. E. 27; Bailey v. New Bedford Instit. for Savings, 192 Mass. 564, 78 N. E. 648, 116 Am. St. Rep. 270; Boynton v. Gale, 194 Mass. 320, 80 N. E. 448; Supple v. Suffolk Savings Bank, 198 Mass. 393, 84 N. E. 432, 126 Am. St. Rep. 451. Those introduced by the plaintiff were Kelley v. Snow, 185 Mass. 288, 70 N. E. 89; McMahon v. Lawler, 190 Mass. 343, 77 N. E. 489. The defendant says that in Massachusetts a man may deposit his own money in a savings bank in his own name in trust for another without passing title to

the beneficiary, if he retains the deposit book, and gives no notice of the deposit to the beneficiary, nor to one representing the beneficiary, nor to be communicated to the

Elmer Johnson, for plaintiff. C. G. Aus- beneficiary; that in such case the depositor tin & Sons, for defendant.

has a right in his lifetime to withdraw and

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rép'r indexes

executed intent, that whether the deposit of money in a bank in the depositor's own name as trustee for another will be taken as sufficient evidence of an executed intent to create a trust, or whether it is necessary to go further and show a delivery of the pass book to the beneficiary or its equivalent, is a matter of evidence pertaining to the remedy, and not to the right, and therefore is governed by the law of the forum, by which, in this case, there is sufficient evidence to show the intent executed and the right created.

[1] But this proposition cannot be sustained, for it is certain that the law of Massachusetts controls here as to the right, and that law requires notice to the intended beneficiary and assent by him in order to execute the intent and create the right, and both of these elements are lacking here. The plaintiff refers to Kelly v. Snow, 185 Mass. 288, 70 N. E. 89, and McMahon v. Lawler, 190 Mass. 343, 77 N. E. 489, introduced by her, as tending to show a conflict in the Massachusetts cases on this subject. But neither of them has any such tendency. In Kelly v. Snow the case as to a certain bank deposit went against the claimant on an adverse finding of intent by the master from a large number of opposing facts reported by him, which the court said made the question one of fact and not of law, as it manifestly did. In McMahon v. Lawler the gift was sustained, not because the intent of the donor had been made known to others, but because her admissions warranted a finding that the gift had been communicated to the beneficiary and accepted by her. This is what is said of that case in Supple v. Suffolk Savings Bank, and rightly no doubt. There is therefore no conflict in the evidence afforded by the cases introduced as to the law of the subject in Massachusetts, and the testimony of the expert was to the same effect as the

use the fund the same as if it was deposited | in the character and amount of proof requirin his own name only, and, if the account ed by the courts to establish the fact of an stands thus at the death of the depositor, his personal representative is entitled to the fund. This we regard as a substantially accurate statement of the law of Massachusetts as evidenced by the cases introduced. Thus Supple v. Suffolk Savings Bank, 198 Mass. 393, 84 N. E. 432, 126 Am. St. Rep. 451, a case introduced by the defendant, was an action by the executors of the will of Kate Cunningham to recover the amount of a deposit standing under the name, "Kate Cunningham Tr. for Willie Foley." The court said that, assuming there was no delivery of the deposit book to Foley, the question was whether there was evidence that Mrs. Cunningham by her own conduct and declarations had manifested a completed and an executed intention to establish a trust in Foley's favor, and whether this intention had been communicated to him and assented to by him so that both parties understood that the trust was not simply inchoate and resting in an intention to be finally consummated in the future, but actually had been fully carried out so that the beneficial interest therein had become irrevocably vested in the beneficiary, that it was not enough that Mrs. Cunningham made her deposit formally in trust for Foley, nor enough even had she communicated to others the fact of her attempted creation of a trust, for that it could not become a completed and an executed trust till communicated to Foley, or at least to some one acting in trust for him and for his benefit, and accepted by him, but that admissions by an alleged donor that there has been an executed gift or a completed trust might, of course, be proved against the donor or her representatives, and might be found to include admissions that there was either an actual delivery of the article or an effectual communication of the trust to the intended beneficiary and an acceptance of it by the latter. All the other cases introduced by the defendant are to the same effect. Thus in Clark v. Clark, 108 Mass. 522, money belonging to a woman was deposited by her in a bank in her own name as trustee for the defendant, but she retained the deposit book and gave the beneficiary no notice of what she had done, and the beneficiary did not know of it until after the death of the depositor. By one of the by-laws of the bank no one could draw any part of the money without presenting the book. The court said that, even if it were proved that the depositor intended to create a trust, she did not do what was necessary to carry that intention into effect, that the beneficiary was not a party to the transaction, and never acquired any title to the money, but that, on the death of the depositor, it passed to her administrator.

The plaintiff claims that the only difference, if any, between the law of Vermont and

cases.

[2] But as to a question put to him a point is made. The defendant asked him a hypothetical question that assumed as true what her testimony tended to show, and inquired his opinion whether such facts constitute a gift or a trust under the laws of Massachusetts. The plaintiff objected that that was virtually asking the witness to decide the case-to usurp the province of the jury. But the question was allowed, and the witness answered that in his opinion they would constitute neither. The plaintiff now claims on the strength of Jenness v. Simpson, 84 Vt. 127, 78 Atl. 887, that to allow the question was error.

[3] But if it was, which we do not decide, it was harmless, for the testimony elicited had no tendency to support the plaintiff's case, and it is clear beyond question that it could not have influenced the court in deter

introduced, which was a question for the court and not at all for the jury, there being no conflict among them, and no unascertained facts necessary to their construction. This accords with what we said last term in Mellen v. U. S. Health & Accident Ins. Co., 82 Atl. 4. And so are the cases of Ufford v. Spaulding, 156 Mass. 65, 30 N. E. 360; Molson's Bank v. Boardman, 47 Hun (N. Y.) 135; Alexander v. Pennsylvania Co., 48 Ohio St. 623, 30 N. E. 69. In the case last cited it is said that to submit the examination and construc

6. DEEDS (§ 58*) — DELIVERY TO AGENTSUFFICIENCY.

equivalent to a delivery to the grantee, must A delivery of a deed to an agent, to be be a delivery to an agent authorized to accept it.

[Ed. Note.-For other cases, see Deeds,

tion of judicial decisions to a jury would be Cent. Dig. §§ 130-135; Dec. Dig. § 58.*]

1. MUNICIPAL CORPORATIONS (§ 224*)-CONTRACTS-LIABILITY.

The council of Montpelier voted to purchase land at a specified price, and the owner prepared a deed and delivered it to the mayor, who did not present it to the council; and the council never directed the drawing of a warrant for payment of the land, and the deed was never recorded. The council subsequently rescinded its vote regarding the purchase, and the deed was returned to the grantor. Held, that the city was not liable for the price; there having been no acceptance, and the tender not being equivalent to a delivery.

Dec.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 623-625; Dig. § 224.*]

2. DEEDS (§ 64*)-DELIVERY-ACCEPTANCENECESSITY.

Title to real estate passes upon delivery of a deed thereto; but the acceptance of the deed by the grantee is an essential element of a good delivery.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 142, 143; Dec. Dig. § 64.*] 3. DEEDS (§ 194*)-DELIVERY-ACCEPTANCE PRESUMPTION./

7. MUNICIPAL CORPORATIONS (§ 224*)—AcCEPTANCE OF DEED.

The acceptance of a deed by a city may be inferred from circumstances.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 623-625; Dec. Dig. § 224.*]

8. DEEDS (§ 66*)-DELIVERY-ACCEPTANCE— LAW OR FACT.

Whether there has been a complete delivery of a deed is ordinarily a question of fact, or a mixed question of law and fact. [Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 127, 633; Dec. Dig. § 66.*] 9. APPEAL AND ERROR (§ 931*)-REVIEWPRESUMPTION.

The Supreme Court will assume, in support of a judgment, that the trial court made the inference required by the facts found. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3728, 3762-3771; Dec. Dig. § 931.*]

HASELTON, J. This is an action of assumpsit, brought by the administrators of the estate of the late Perley P. Pitkin, to recover of the city of Montpelier the purchase price of certain land, on the ground that the land had been sold and conveyed by them to the city. The case was tried by the court, which made a written finding of [Ed. Note. For other cases, see Deeds, facts. Upon the facts found, the court renCent. Dig. §§ 574-583, 623; Dec. Dig. § 194.*] dered judgment for the defendant to recover 4. DEEDS (§ 194*)-DELIVERY-ACCEPTANCE— its costs. The plaintiffs bring the case here PRESUMPTION.

The law will ordinarily presume acceptance of a deed, unless the contrary is shown, where the grant is obviously beneficial to the grantee.

A conveyance to a city, for a valuable consideration, of lands to be used for school purposes is not necessarily beneficial to the city; and hence an acceptance of the deed will not be presumed.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 574-583, 623; Dec. Dig. § 194.*1 5. MUNICIPAL CORPORATIONS (§ 224)-CONTRACTS-POWERS OF PARTICULAR OFFICERS. Under Montpelier City Charter, § 21, vesting the administration of municipal affairs in a city council consisting of the mayor and aldermen, and section 24, providing for meet

by a bill of exceptions.

[1] By No. 245 of the Acts of 1908, the city of Montpelier was authorized to issue "notes or bonds not exceeding one hundred thousand dollars in amount, for the purpose of building school houses, and for the purchase of land for sites therefor and for grounds and playgrounds in connection therewith, and for the payment of damages for land taken for that purpose."

March 2, 1909, at its annual meeting, the

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

bids on high school bonds of the face value | Am. St. Rep. 422, 10 Ann. Cas. 92. The docof $30,000, the bids to be opened December trine is that delivery does not depend upon 22, 1909. It seems that the authorization the acts and intention of the grantor alone, was acted upon; for December 22, 1909, bids but rather upon the acts and intention of were opened, the best bid being from the both grantor and grantee; and the above National Life Insurance Company, and an is- cases amply illustrate it. sue of bonds of the face value of $30,000 was awarded to that company. January 4, 1910, the matter of printing bonds was referred to the finance committee. January 12th that committee reported that the insurance company would have its attorney present a sample bond and look into the legality of the issue. These proceedings of December 8th, December 22d, January 4th, and January 12th, were taken in the interval between the time when the plaintiff's got their license to sell the real estate and the time when they presented the deed in question to the mayor. The National Life Insurance Company revoked its bid, and no bonds were, in fact, issued. Just when the bid of the insurance company was revoked does not appear.

March 1, 1910, at its regular annual meeting, the question of the issue of bonds of the amount of $100,000, for the purposés contemplated by the vote of the March previous, was under consideration. May 19, 1910, at a special meeting, the city voted 546 to 82 to rescind the vote of the year previous-the vote by which the Loomis street site had been chosen for a schoolhouse and playgrounds. Six days after this rescinding vote, the mayor received the deed in question from a member of the school board, and the next day after receiving it the mayor returned it to the plaintiff Wood, who refused to receive it. The subsequent history of the deed, not claimed by either party to be material, is, in brief, this: The mayor left it with the plaintiff Wood, who sent it to the city clerk's office, where it has since been, but not as a file for record. We have recited the principal facts attending the proceedings relative to the deed or to the land described therein.

[3] In the case of grants obviously beneficial to the grantee, the law will ordinarily presume acceptance by the grantee, unless his dissent is shown. Caledonia County Grammar School v. Howard, 84 Vt. 1, 77 Atl. 877; Moore v. Giles, 49 Conn. 570. This principle of the presumed acceptance of a benefit sought to be conferred applies, not alone in the case of deeds, but is of more general application. Harris v. Harris' Estate, 82 Vt. 210, 72 Atl. 912; Church's Ex'r v. Church's Estate, 80 Vt. 228, 232, 67 Atl. 549; Bank of the United States v. Dandridge, 12 Wheat. 64, 6 L. Ed. 552.

[4] The plaintiffs' argument is based, in part, upon the claim that the doctrine of the presumed acceptance of beneficial grants is applicable in this case. But it is not applicable; for this is an ordinary case of the sale of land, and the fact, somewhat relied upon, that it is beneficial to a town or city to maintain schools does not tend to show that a trade for particular lands, to be used for school purposes, is beneficial, much as it is that the beneficial and necessary character of food, clothing, and money does not tend to bring sales of wheat, cotton, and mining stock within the purview of the benign doctrine sought to be invoked.

The case of Lessee of Mitchell v. Ryan, 3 Ohio St. 377, is referred to and quoted from by the plaintiffs. The able opinion in that case was written by Judge Thurman. The opinion says, among other things, that the record of a deed is prima facie evidence of delivery; but that it is prima facie evidence only, and so is subject to explanation and rebuttal; that, as a general rule, acceptance is necessary to constitute a good delivery, but that, where a vendee has fully paid for [2] It is claimed by the plaintiffs that, in land, his acceptance of a deed of the land consequence of what appears, the title to the for which he has paid may be inferred; that, land vested in the city, and that they are where a grant is a pure and unqualified gift, entitled to recover the purchase price, on the the presumption of acceptance will prevail, ground that the land was sold and conveyed without evidence of dissent. This was'a case to the city. Title to real estate passes upon of a deed of gift from one Shannon to his the delivery of a deed thereof. Harrington | daughter, a minor; and it was in applying v. Gage, 6 Vt. 532; Elmore v. Marks, 39 Vt. 538; In re Lane's Estate, 79 Vt. 323, 328, 65 Atl. 102; Abbott v. Lapoint, 82 Vt. 246, 73 Atl. 166. But the acceptance of a deed by the grantee is an essential element of a good delivery. Denton v. Perry, 5 Vt. 382; King v. Smith, 33 Vt. 22; Dwinell v. Bliss, 58 Vt. 353, 357, 5 Atl. 317; Orr v. Clark, 62 Vt. 136, 19 Atl. 929; Gorham's Adm'r v. Meacham's Adm'r, 63 Vt. 231, 235, 22 Atl. 572, 13 L. R. A. 676; Gould v. Day, 94 U. S. 405, 24 L. Ed. 232; Creeden v. Mahoney, 193 Mass. 285, 79 N. E. 344, 9 Ann. Cas. 1121; Meigs v. Dexter, 172 Mass. 217, 52 N. E. 75; Hartman v. Thompson, 104 Md. 389, 65 Atl. 117, 118 82 A.-43

the above principles to the case then in hand that the court said, what the plaintiff's quote upon their brief, that: "The strictness of the ancient doctrine, in respect to the delivery of deeds, has gradually worn away until a doctrine more consistent with reason and the habits of the present generation now prevails." In view of the case, the passage quoted and the context are not calculated to disturb the doctrines as to delivery and acceptance that are here well settled. Some of the expressions in the opinion are too absolute; for it is not to be presumed that every one, under all circumstances, will accept whatever gift is offered him, but these