298 Mass. 67 | Mass. | 1937
One Joseph Cadorette of Lowell died intestate in February, 1934, leaving as his only heir his son Albert Cadorette. Charlotte Denault, a niece, was appointed administratrix. She obtained a license to sell for the payment of the debts of her intestate a parcel of land on Ennell Street in Lowell, title to which stood in the name of the brother of her intestate, the respondent Wilfrid Cadorette, but which she alleges was held by him under a constructive trust for her intestate. She alleges also that two savings bank accounts in the name of her intestate in trust for the respondent were the property of her intestate alone. She filed a petition in equity in the Probate Court praying that the real estate and bank books be declared assets of the estate, and that the respondent be restrained from conveying or transferring them and ordered to surrender them. From a decree for the petitioner as to both the real estate and the bank books, the respondent appealed.
It appeared that before the acquisition of the property in question Joseph Cadorette had deserted his wife in Newark, New Jersey, and had removed to Lowell. He feared to hold property in his own name, because of the danger that his wife would attach it. The whole evidence is before us for review, subject to the familiar rule as to the weight to be given to the findings of the trial judge made upon oral testimony. Trade Mutual Liability Ins. Co. v. Peters, 291 Mass. 79, 83-84. Spiegel v. Beacon Participations, Inc. 297 Mass. 398, 407-408. No useful purpose would be served by a recital of the evidence in this case. It is enough to say that we see no'reason to disagree with the findings of the trial judge. Ecklund v. Ecklund, 288 Mass. 517. O’Reilly v. O’Reilly, 293 Mass. 332, 333.
The respondent urges that the decree goes beyond the scope of the petition, in that the petition states the amount on deposit in the Lowell Five Cent Savings Bank as $300 and that on deposit in the City Institution for Savings as $600, while the decree orders the respondent to pay the
The decree orders the respondent to convey to the petitioner the real estate in question. An administrator selling under a license has power but no title. Hooker v. Porter, 271 Mass. 441, 446. Patrick v. Dunbar, 297 Mass. 40, 43. There is no need of investing him with title. The decree of November 1, 1935, is to be modified by striking out the words, "convey to said petitioner, as she is administratrix as aforesaid, said real estate” and by inserting in the place thereof the words, "be and hereby is perpetually enjoined and restrained from entering upon, occupying, claiming, conveying, encumbering, bringing any action or suit for, or in any way interfering with said real estate or the proceeds thereof,” and as so modified it is
Affirmed.