summer until the summer of 1914. The society has preserved its organization, kept the building in repair, and raised money by a tax on the pewholders to defray expenses.

In 1879 the Ladies' Social Circle, an organization independent of the Meeting House Society and composed of ladies who were en

It was objected that no foundation had been laid for such evidence that the state-deavoring to assist in matters pertaining to ment of a landowner could not be "put in" under the circumstances shown. The chancellor ruled that the statement itself was not admissible, but received the answer to the question, which was in the affirmative. Plaintiff's counsel then said, "As I understand the court, my further offer the court excludes," and, being so informed, he asked and was allowed an exception. No offer was made, and so no question was saved. But if we were to assume that the chancellor treated what was said as an offer to show plaintiff's claimed arrangement in regard to the exchange of land by the admission of one of the pewholders of the society, the result would be the same. If James Carpenter was at the time of speaking a pewholder, which seems to have been open to question, he was no more than a tenant in common with the other

pewholders, so far as his interest in the land in question was concerned. His declaration in the nature of an admission, not made in the presence and hearing of his cotenants, would not be admissible in evidence. The

necessary identity of interest was wanting to make such a declaration admissible. Pope V. Hogan, 92 Vt. 250, 256, 102 Atl. 937; Blondin v. Brooks, 83 Vt. 472, 481, 76 Atl. 184.

The

the society and its work, built an annex to
the basement of the church to furnish room
for a stage to be used in connection with the
basement for entertainment purposes. The
society consented to this being done by the
Social Circle, but without incurring liability
for the expense. The ladies secured the funds
to build the annex by subscription, to which
some of the pewholders contributed.
Social Circle assisted in raising money to
pay for preaching and for buying carpets, a
chandelier, and other necessary articles for
the benefit of the church. The basement of
the building together with the annex has been
rented to dramatic clubs, lodges, and travel-
ing shows, as well as being used for church
meetings; and the rent received therefor has
been used for the support of the church. A
portion of this annex was erected with the
consent of George O. Davis, upon land then
owned by him. Plaintiff's asserted equities
in the meeting house lot are claimed to have
their origin in this transaction. The bill al-
leges in substance that, in consideration that
plaintiff's father would permit the Meeting
House Society to build the addition upon his
land, the society agreed to permit him and

We come to the consideration of the case as left by the findings. The Union Meeting House Society was organized in 1826 for the purpose of building a meeting house in the village of Marshfield. The house was erected in 1827 on land situated on the southerly side of Main street and then owned by Truman Pitkin, one of the members of the association. December 10, 1829, Pitkin conveyed the lot on which the meeting house stood to one Silas Jacobs in trust for the society, "their heirs and assigns forever." The record title to the land is still in Jacobs, who has been dead many years. The plaintiff owns the land adjoining the meeting house lot on the west and south through successive conveyances from Pitkin, which he occupies as a house lot. George O. Davis, the plaintiff's father, acquired the title thereto in 1852 and occupied the premises until his death in 1906. plaintiff acquired the title before the death of his father, since which time he has been in possession. The building erected in 1827 is still standing, though it has undergone some alterations. It has been raised, lengthened, and set back from the street. As remodeled there is a basement or vestry below and a room above used for religious purposes, fitted with pews, pulpit, and gallery. Regular church services were held in this room until about 20 years ago, and since then they

The

his heirs and assigns forever to maintain a building on the line between their respective properties, to be partly on the land of each, and to have a right of way across the meeting house lot for access to said building from Main street; that pursuant to such agreement the annex to the meeting house was erected and has ever since been maintained with the consent and acquiescence of the plaintiff and consent and acquiescence of the plaintiff and his predecessors in title; and that the plaintiff and his predecessors have always occupied the building situated in part on each of the adjoining properties without let, hindrance, or objection until about the 1st day of September, 1914. The chancellor has failed to find any such agreement. The substance of his findings respecting the building and claimed right of way is as already stated.

It is apparent that this controversy arose when the plaintiff commenced the construction of the garage. He was then notified by one who claimed an interest as pewholder and member of the society that he had no legal right to cross the church land, but plaintiff proceeded to complete the garage. In 1910, the plaintiff had built, an addition on the easterly end of his house that extended close to his easterly line, cutting off access over his own land to the rear of his buildings and to the land where the garage was subsequently erected The garage contains two au

(108 A.)

[9] We do not take the time to review all of the claims made by the plaintiff in his brief. Some would have to be disposed of as insufficiently briefed, not being supported by argument or citation of authority. As to some it is only necessary to say that they are untenable because not supported by the record, in some cases because there is no finding, though he had the burden, and in others because the finding is adverse. In some instances we are asked to infer facts from those found where the inference would be against the decree. See Rowley v. Shepardson, 90 Vt. 25, 28, 96 Atl. 374. Several claims

leases for rental. The plaintiff and the oth- [ granted and held for a pious use. G. L. 1875; er occupant of the garage have no way to Trustees Cal. County Gr. School v. Howard, reach the street except across the meeting 84 Vt. 1, 10, 77 Atl. 877. Nor can he stand house lot. After the garage was completed, upon the claim of a presumptive grant. No a committee of the society erected a fence such claim was made before the chancellor ; with a gate along the street side of their lot but, on the contrary, he alleged and attemptand put a lock on the gate. The plaintiff ed to prove the right to occupy the defendremoved the obstruction, and the suit in tres- ant's land under such an arrangement that pass was brought. it would be inequitable for the defendant to [4, 5] Plaintiff made the location of the terminate it, a position wholly inconsistent division line between his premises and those with a claim of title in himself. The position of the defendant one of the issues in the case. taken by the plaintiff in his allegations and He alleged that the defendant was wrongful-proof precludes any presumption of a grant. ly claiming that the addition to his dwelling Trustees Cal. County Gr. School v. Howard, house was built over the line onto the defend- 84 Vt. 1, 11, 77 Atl. 877; Vaughn v. Congdon, ant's land, and among other things prayed 56 Vt. 111, 116, 48 Am. Rep. 758. that the location of the line be determined. The chancellor found that the line was located where the plaintiff claimed. It is now urged that having taken jurisdiction the chancellor should have at least made a decree establishing the location of the line. Counsel overlook an essential qualification of the rule, as sometimes expressed, that once equity has taken jurisdiction of a case it will retain it for all purposes and dispose of the whole matter. The rule should be taken with the qualification usually stated, "where the jurisdiction of chancery has been rightfully invoked for that purpose." Deerfield Lumper Co. v. Lyman, 89 Vt. 201, 208, 94 Atl. 837, 839. Per-are made that grow out of a mistaken view haps a more satisfactory phrasing of the general rule is that when the court has jurisdiction of the case for one purpose it will be retained for a final disposition of the whole matter. Van Dyke v. Cole, 81 Vt. 379, 391, 70 Atl. 593, 1103. It is not claimed that the facts in this case are sufficient to give the court of chancery jurisdiction of the controversy over the boundary as an independent ground for equitable relief; nor could it well be, for the case is lacking in all the facts necessary to such jurisdiction. See Watkins v. Childs, 80 Vt. 99, 66 Atl. 805, 11 Ann. Cas. 1123. It follows that, before the relief asked for as to the boundary will be granted, some substantial ground of equitable jurisdiction must be established. In this, the plaintiff has failed. Though he alleged facts which may have brought the case within the jurisdiction of equity, so that it was properly retained until the final hearing, he came short in his proof, which disentitled him to any decree in his favor. Deerfield Lumber Co. v. Deerfield Lumber Co. v. Lyman, supra.

[6-8] The plaintiff acquired no right to cross the meeting house lot by use, however long continued, if for no other reason, because it is found to have been permissive and not under a sufficient claim of right. Barber v. Bailey, 86 Vt. 219, 223, 84 Atl. 608, 44 L. R. A. (N. S.) 98; Trustees Cal. County Gr. School v. Howard, 84 Vt. 1, 12, 77 Atl. 877; Vermont Marble Co. v. Eastman, 91 Vt. 425, 452, 466, 101 Atl. 151. Neither could he acquire title to the land where the swillhouse stood by adverse possession, as there can be no limitation here, the land having been

concerning the title to the meeting house lot
and the rights of the society with reference
thereto. The trust deed created a passive or
naked trust. The trustee was a mere depos-
itory of the naked title, with no active duties
to perform. He was without power to take
possession, or to manage or exercise any con-
trol over the property.
trol over the property. His death did not
defeat the trust, for the law makes provision
for its devolution.
for its devolution. We are at present con-
cerned only with the rights of the society in
the premises as they are regarded by a court
of equity. Though the deed vested the legal
title in the trustee, it vested an equitable es-
tate in the society. Gilkey v. Shepard, 51 Vt.
546; Thompson v. Tryon, 66 Vt. 191, 28 Atl.
873. In such a trust as this the equitable es-
tate of the cestui que trust is to all intents
the beneficial ownership, entitling him to the
possession, the rents and profits, and the
management and control, according to the ex-
tent of his estate. Such trusts are considered
in equity as virtually equivalent to the cor-
responding legal ownerships, and the trust is
regarded rather as fastened upon the estate
than upon the person of the trustee. The
equitable and real property, with all its fea-
tures and incidents, belongs to the beneficiary,
so that he is treated in every sense as the
true owner.
true owner. I Pom. Eq. §§ 153, 374; 3 Pom.
Eq. § 988; Atkins v. Atkins, 70 Vt. 565, 41
Atl. 503. Such being the equitable view of
the society's relation to the property, it did
not stand as a stranger to the title, but in
equity was clothed with all the incidents
of legal ownership.

Decree affirmed, and cause remanded.

and order in an envelope with R.'s name on it and left the same with the bank for safe-keeping, the deposit still standing on the books of the bank in the name of the purchaser until the death of R., there was no sufficient showing of a donative intention on the part of R. to create a gift in præsenti of a joint interest in the fund,

1. APPEAL AND ERROR 212-MOTION FOR nor a valid delivery, notwithstanding G. L. 5376.

[Ed. Note.-For other definitions, see Words 4. GIFTS 47(1)-BURDEN ON DONEE TO ES- and Phrases, First and Second Series, And; Or.]

The burden is upon an alleged donee to es- 11. BANKS AND BANKING 129 — STATUTE tablish the gift.

49(5)-FACTS HELD NOT TO ESTAB- of the relation.

On Motion for Reargument.

(108 A.)

15. APPEAL AND ERROR 832(1)-FAILURE TO PRESENT CASE FULLY NO GROUND FOR RE

HEARING.

It is a general rule that failure to present a case fully, or to give sufficient attention to the argument on a former hearing, does not in a court of last resort afford ground for rehearing.

16. APPEAL AND ERROR

832(4)-REHEARING NOT GRANTED FOR PURPOSE OF RAISING QUES

TIONS NOT PRESENTED.

The Supreme Court will not grant a rehearing for the purpose of permitting a party to raise questions not presented at the former hearing.

17. APPEAL AND ERROR 1177(7)
TRIAL GRANTED ON SUGGESTION THAT
STRONGER CASE MIGHT BE MADE.

(2) that it did not show an intention on the part of Houghton to convey a joint interest in the deposit to the claimant. At least, it seems to have been so treated by the court below, and we so treat it. Castonguay v. Grand Trunk Ry. Co., 91 Vt. 371, 100 Atl. 908.

[2] Under this motion the evidence must be weighed in the light most favorable to the claimant. Fitzsimons v. Richardson et al., 86 Vt. 229, 84 Atl. 811; Morris v. Trudo, S3 Vt. 44, 74 Atl. 387, 25 L. R. A. (N. S.) 33. It tends to show that Houghton owned a place in Bennington which he sold to Hawks, early in September, 1917, reserving a life lease. Houghton was to take in part payment the deposit in the defendant bank, NEW which Hawks then owned. He told Hawks that "he wanted the book payable to himself or Charles Maurer, or the survivor of either." Hawks went to the bank where the deposit was, accompanied by Maurer, to find out how the transfer should be made to meet Houghton's wishes. He there procured a blank order into which Maurer there wrote the words, "Richard M. Houghton or Charles A. Maurer, or either or the survivor of either of them." They then returned to Houghton's house, the place sold to Hawks, the latter figured the amount due on the

In an action by executors to recover bank deposit claimed to be part of an estate of deceased, claimed by another to have been given to him as a gift by deceased, the Supreme Court, on reversing a judgment in favor of the claimant on the ground that the facts did not show a valid gift, will grant a new trial, where it is claimed by the claimant that he will be able to make a stronger case on another trial because certain important evidence offered by him on the trial was improperly excluded.

Exceptions from Bennington County Court; deposit, inserted it in the order, and signed Frank L. Fish, Judge.

Action by Houghton Rice and Fred Bugbee, executors of the estate of Richard M. Houghton, deceased, against the Bennington County Savings Bank and Charles A. Maurer. Verdict and judgment for the last-named defendant, and the plaintiffs bring exceptions. Judgment reversed, and cause remanded.

Argued before WATSON, C. J., and POWERS, TAYLOR, MILES, and SLACK, JJ.

Henry Chase, of Bennington, for plaintiffs. James K. Batchelder and Robert E. Healy, both of Bennington, for claimant

SLACK, J. This is a controversy over the ownership of a deposit in the defendant bank. The plaintiffs claim that it belongs to the estate of Richard M. Houghton deceased and brought this suit to recover it for the estate. Maurer claims it as a gift inter vivos, and also that he acquired title thereto under an order given by one Hawks, concerning which more will appear later. Trial was had by jury. At the close of all the evidence the plaintiffs moved for a directed verdict. The motion was overruled, subject to the plaintiffs' exception, and there was a verdict and judgment for the claimant.

[1] While this motion is not in the most approved form, we think that it fairly raised the questions: (1) That the evidence did not show a valid delivery of the order and bank book by Houghton to the claimant; and

it; Maurer signing as a witness. It did not appear that Houghton knew that Maurer

went to the bank with Hawks or that he had to do with writing the order. Maurer drew the deed from Houghton to Hawks and the life lease to Houghton, at Houghton's request, and was at the latter's house in con

nection with this transaction, when the order was completed and delivered. The material part of the order follows:

"Sept. 5th, 1917. "Treasurer Bennington County Savings Bank pay to the order of Richard M. Houghton or Charles A. Maurer, or either, or the survivor of either of them," etc.

It appeared that the table referred to was Houghton's kitchen table; that Houghton, Maurer, and one Spencer were present at the time; that, immediately following the incident testified to, the witness took his deed and went away. On cross-examination by the claimant the witness testified:

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes