Carr v. Streeter, 262 Mass. 595

Carr v. Streeter

262 Mass. 595 | Mass. | 1928

Braley, J.

By thrift and economy Amro W. Streeter, of whose estate the plaintiff has been appointed conservator, had acquired the premises where he lived and part of which he rented, and personal property consisting almost wholly of deposits in savings banks. The master finds that when Streeter was eighty-six years of age he signed transfer orders on the banks as stated in the report and gave the orders with the bank books to the defendant Waldo F. Streeter, his nephew, who afterwards took the orders and books to the designated banks and had five of the accounts transferred to his wife, Ella A. Streeter, or withdrawn. There were five other orders directing the transfer of accounts standing in the name of Amro W. Streeter to the joint account of Amro W. Streeter and Waldo F. Streeter, all of which orders came into the possession of Waldo F. Streeter, who shortly thereafter had the accounts transferred or withdrawn, according to each order, and used the amounts for his own purposes. The moneys so transferred amounted to $16,466.07, being substantially all of Amro W. Streeter’s property. The bill alleges that the defendant, Waldo F. Streeter, sustained a fiduciary relation to Amro W. Streeter who had been weakening both mentally and physically for several years and was susceptible to influence by other persons, and that with knowledge of these conditions Waldo F. *599Streeter induced Amro W. Streeter to execute the assignments, of which he did not realize the legal effect, .nor did he intend that the assignments should take effect as transfers of deposits. The master also finds that Amro W. Streeter while “on good terms with all his relatives and maintained normal relations with them, his associations were, at the time in question mainly with Waldo F. Streeter and family. Long before this time Amro had habitually called at the house of Waldo. Numerous small services had been rendered by Waldo and his family to Amro in the form of shovelling walks' in the winter, furnishing wood, and the like. There had been business relations . . . they buying wood lots together and cutting off and selling the timber. Waldo had possessed to some extent his uncle’s confidence, and had helped his uncle with his bank books by writing letters to the banks, making lists . . . He also had given “him automobile rides and” during an illness in the previous August, he had “spent the night with” Amro. It is found that the relations between them were the normal relations to be expected from those who are close relatives as well as near neighbors. The assignor also had previously made a will which he kept in his house giving substantially all of his property to the town of Winchendon, the place of his domicil. The master further states that Amro W. Streeter was weakened mentally and physically by age. His hearing and eyesight were impaired, but his health was sound, and apart from the weakness of years he was in good mental and physical condition.

The record shows no trust relations between the parties for which the plaintiff contends. A fiduciary relationship which the plaintiff urges is a relationship in which if a wrong arises, the same remedy exists against the wrongdoer on behalf of the principal as would have existed against a trustee on behalf of the cestui que trust. National Bank v. Insurance Co. 104 U. S. 54, 68. Woodbury v. Woodbury, 141 Mass. 329. See Cronan v. Cotting, 104 Mass. 245, 247. Barrow v. Rhinelander, 1 Johns. Ch. (N. Y.) 550. If the .donor was enfeebled by age although not mentally unsound, and the gifts were of a large part of his estate, and he acted *600without independent advice, these facts were all relevant on the question whether the gift was voluntary, there being no evidence of fraud or misrepresentations on the part of the defendants or any solicitation by them to induce him to part with his property. The question before the master therefore was whether the transfers by Amro W. Streeter were intended by him to be gifts.

In this connection we consider the action of the master, to which the plaintiff excepted, in reopening the case after the hearings had been closed but before the draft report had been submitted. The parties not having called the witnesses to the donor’s signature on the orders, the master notified counsel that he desired their testimony and submitted the questions to be propounded which were competent on the issues before him. Counsel having assented, the case was reopened, the witnesses attended, when counsellor the plaintiff withdrew his consent. The master however asked the questions and received the evidence. The procedure was discretionary with the master. New York Bank Note Co. v. Kidder Press Manuf. Co. 192 Mass. 391, 405 Bon v. Graves, 216 Mass. 440, 445.

While Amro W. Streeter appeared as a witness before the master and admitted his signature, he denied that he had any recollection of the transactions and testified that he had no intentions of making any gifts at the time. The master, without reciting the testimony in detail, decided upon evidence of credible witnesses that Amro W. Streeter realized the consequences of his acts and intended to make the transfers and that the material allegations of the bill had not been proved. The plaintiff contends that the findings should be set aside. But, the evidence not having been reported, we cannot say that they are plainly wrong; and, being consistent with* and supported by his subsidiary findings, the master’s conclusions should npt be reversed. The contention of the plaintiff, that, in view of the master’s subsidiary findings, the court should find and rule that the assignments in question were procured by the fraud and undue influence of the defendant Waldo F. Streeter, also must fail. It is not supported by the findings.

*601The plaintiff’s exceptions that the master failed to make certain findings which he should have made, and to the exclusion of evidence, not having been argued, need not be considered. The first, second, third and fourth requests for further findings and rulings in so far as not adopted or given by the trial judge are in conflict with the report and were properly denied.

In January, 1925, the plaintiff, the donor, and the defendants met in conference, and Amro W. Streeter demanded from Waldo F. Streeter a return of the bank books and he was informed that the five bank books in the name of the defendant Ella A. Streeter amounting in the aggregate to about $7,000 could not be returned. The plaintiff then suggested that Ella A. Streeter be permitted to retain the bank books in her name, and that Waldo F. Streeter return the bank books in his name of the value of about $9,000. The donor assented to this proposition to which Waldo F. Streeter also agreed. But no definite time was named for the return, and at a later interview between the same parties Waldo F. Streeter refused to return the bank books, and has persisted in his refusal. The plaintiff’s fifth request however could not have been given. The judge was asked to rule that, “In consideration of the promise of the defendant Waldo F. Streeter to return the bank books referred to ... , Amro W. Streeter impliedly agreed to forbear pressing further his demand for the return of all of the ten bank books referred to, and, in fact, did not press this demand further.” But the bill, which was filed March 13, 1925, asks that the defendants or either of them be ordered to account for all savings bank deposits which they have received. The promise on the record is not supported by any consideration, as there was no agreement express or implied to forbear bringing suit in reliance on the promise to make partial restitution. Barber v. Rathvon, 250 Mass. 479.

The interlocutory decree overruling the exceptions, and confirming the report, is affirmed, and the final decree dismissing the bill with costs is also affirmed with costs.

Ordered accordingly.