This is a petition by the administrator of the estate of Thomas C. O’Connor for adjudication as to the ownership of numerous deposits in savings banks in this Commonwealth. The issues raised were contested on the one side by certain heirs at law of the intestate and on the other by Belinda M. O’Connor. The judge of probate after hearing made a finding in favor of Belinda M. O’Connor, and entered a final decree adjudging that she was the sole and absolute owner of all such deposits at the time of the death of the intestate.
On request of the contesting heirs, he made a full report of facts under G. L. c. 215, § 11. Thereafter the contesting heirs filed a motion that the “stenographer by whom the testimony at the hearing on the merits of this case, was reported” be appointed a commissioner to report the testimony to the full court and that such appointment be made as of the date on which the hearing on the merits was commenced. This motion was supported by an affidavit setting out that the attorney for the contesting heirs before the hearing opened requested that the evidence be taken so as to be reported to the full court. A decree was entered denying this motion, it being recited therein that it appeared to the court that no request that the evidence be reported was made before evidence was offered.
Evidence cannot be thus reported as matter of right unless request is made before any evidence is offered. See G. L. c. 215, §§ 12,13,18 as amended by St. 1923, c. 392, St. 1924, c. 194, § 1; G. L. c. 214, § 24. Lannin v. Buckley,
Whether the motion ought to have' been granted rested wholly in the sound discretion of the judge. No abuse of such discretion is shown. Manning v. Mulrey,
The case is to be considered on the pleadings, the facts reported and the decree entered. The question presented is whether the conclusion reached is consistent with the facts found and whether the decree is within the scope of the petition and supported by the facts found.
Apparently the money represented by the bank deposits was accumulated by the intestate. He was pastor of St. Thomas Church in the town of Adams where he had lived and where his sister Belinda had been his housekeeper. She had for many years sacrificed herself and her future for the intestate and had given him great assistance in his work. For several years before his death there had been two groups of bank books which for convenience in the record are termed respectively group A and group B. All these deposits were in the names of the intestate and/or Belinda M. O’Connor. It is not necessary to go through these books one by one and recite the precise form of words in which each deposit stood at the death of the intestate. It is enough to say that some were simply in their two names, and some expressly were made payable to either or the survivor; one was in the name of Belinda alone with these words added, “May be drawn by her brother Rev. T. C. O’Connor.” Group A was made up of books which were kept for years in a suit case in the room of Belinda at the parish rectory. As to this group the finding was in these words: “I find that the bank books comprising Group A were given by the deceased to his sister, Belinda.M. O’Connor, several years
The bank books in group B were also in the possession of Belinda M. O’Connor, kept by her at her home. They were thus located at the time of the death of the decedent. As to these the judge found “asa fact that the accounts mentioned in Schedule B belong to Belinda M. O’Connor and were in her possession at the time of the death of the decedent.”
As to the deposits comprised in group A the finding of the judge is categorical to the effect that they were given by the deceased to his sister several years prior to his death, that the gift was discussed between them and their friends, and that she thanked him for his generosity. The books were delivered into her possession and were kept for a considerable time in her room. These facts are sufficient to show a completed gift. The terms of the deposits are consistent with the gift. The circumstance that for reasons of safety the books were removed from the possession of the sister and placed in a safe deposit box in a bank to which both the deceased and his sister held a key does not as matter of law militate against the effect of the prior gift. Eastman v. Woronoco Savings Bank,
As to group B there is the additional factor that the books were delivered to Belinda as gifts and were continuously kept by her in her own custody. It cannot be doubted that title to these vested in her. The deposit made in the name of Belinda alone manifestly could have been found to belong to her.
The finding as to both groups is explicit that there was a gift of the books and the deposits represented thereby by the intestate during his life. Since the evidence is not reported, that finding cannot be pronounced unwarranted. The form of the deposits is not incompatible with the general finding. It is not necessary to examine in detail the effect of the form of each particular deposit if it stood apart from the general explicit finding. The failure of the sister Belinda in some instances to sign the signature cards at the bank does not affect her right to the deposit if the intent of the parties is otherwise clear. Perry v. Leveroni,
Decrees affirmed.