290 Mass. 553 | Mass. | 1935
This is an appeal from a decree entered in the Probate Court on a petition for instructions as to the distribution of certain bonds with coupons and accrued interest on certain savings bank deposits, brought by Mattie 0. Bratt, administratrix with the will annexed de bonis non of the estate of Joseph H. Ordway. The case was submitted to the trial judge upon an agreed statement of facts and certain uncontradicted and undisputed oral testimony. Thus it appears that Joseph H. Ordway died testate in January, 1932, leaving a widow and a daughter by a former wife, who is the present petitioner. By his will the widow was named executrix, and the bulk of his property was left to her “for her life only, but with full power to use, sell, transfer and dispose of the same in any manner she may deem necessary for her benefit or enjoyment during her lifetime,” with an admonition to provide for the support and comfort of his daughter, and the further provision that “Should my daughter Mattie, without leaving issue, predecease my wife, then in that event, my wife shall have the power to dispose of all the property by testamentary provisions.” “All of
The decree entered by the probate judge upon the present petition was that all the bonds purchased as above are the property of the estate of the widow. The correctness of this portion of the decree presents the only controversy now to be determined. The decree also provided that the income from savings bank accounts standing in the name of the testator from the date of his death to the date of the decease of his widow and the uncollected coupons on the bonds purchased by the widow after his death belonged to the estate of the widow. No question is raised concerning the correctness of this part of the decree and that ruling is conceded to be correct. G. L. (Ter. Ed.) c. 197, § 26. Old Colony Trust Co. v. Smith, 266 Mass. 500.
Appeals from the decree were taken by the present petitioner and by the succeeding trustee appointed under the will of the testator. Upon request the trial judge reported the material facts. That report is based primarily upon the agreed statement of facts, although certain findings are based upon the brief, uncontradicted oral testimony reported in the record. In these circumstances the findings of primary facts by the probate judge will not be set aside on appeal unless they are plainly wrong. Cummings v. Russell, 258 Mass. 502. French v. Bray, 263 Mass. 121. This rule is specially applicable to cases where evidence is conflicting, as in Needham Trust Co. v. Cookson, 251 Mass. 160, or where the findings are based on lengthy oral testimony, as in Bowles v. Comstock, 286 Mass. 159. It differs from the principle applied in actions at law where general and special findings of a judge based upon the hearing of oral evidence are to stand if warranted in law upon any reasonably possible view of the evidence. Moss v. Old Colony Trust Co. 246 Mass. 139, 143. The reason for the rule is that the appeal brings up the record, and this court not only draws inferences of fact from facts found by the
In the case at bar the widow was controlling the checking account of the estate of the testator in her capacity as his executrix. She understood that the deposit belonged to her in her trust capacity as executrix and that she could by drawing a check payable to herself individually transfer funds from the estate to herself. That is manifest from the ■ payment of a widow’s allowance to herself in that manner. No such transfer was made of the funds with which the bonds were purchased. They were paid for directly by checks drawn upon the checking account of the estate. To alter the ownership of the property of the estate under such circumstances a notorious, authoritative and unequivocal act to transfer title is necessary. Hobbs v. Cunningham, 273 Mass. 529. Brackett v. Fuller, 279 Mass. 62. All the acts of the executrix with reference to the bonds are consistent with retention of the title in the estate of the testator. There w,as no decisive act indicating a purpose to transfer the assets from the estate of the testator to the executrix. She filed no account showing such distribution. She filed no petition with the Probate Court for authority to make such distribution. Such distribution would have depleted the estate seriously at a time when
The first three requests for rulings presented by the Old Colony Trust Company, succeeding trustee under the will of the testator, were denied rightly, and the other three which were denied need not be considered. The second and fourth rulings given at the request of the respondents Stowell, Pratt and Wilson were erroneous, as were likewise the identical second and fourth rulings given at the request of the administrator of the estate of the widow. The other requests need not be considered.
It becomes unnecessary to determine whether the widow was empowered under the will to appropriate the property in question to herself and deprive the daughter of the testator of any right in it.
The result is that the final decree is reversed and a new decree is to be entered to the effect that the interest due on the savings bank accounts from the date of the death of the testator to the death of the widow, and the uncollected
Ordered accordingly.