311 Mass. 709 | Mass. | 1942
The parties were formerly husband and wife. On December 10, 1940, a decree nisi for divorce was granted by the Probate Court in favor of the wife against the husband. At some time before the decree nisi was entered a “Bill in Equity,” or petition, by the wife against the husband was filed in the divorce proceeding. The purpose of the petition, as disclosed by an amended or substitute petition allowed by the court on January 27, 1941, was to ascertain the interests of the respective parties in a list of stocks the certificates of which stood in the names of husband and wifé “As joint tenants with right of survivorship and not as tenants in common,” and to enforce rights of the wife therein. The judge has reported for our determination the correctness of his action in three interlocutory matters: (1) the overruling of the husband’s demurrer to the amended petition, (2) the denial of the wife’s motion to strike out certain portions of the husband’s answer to the amended petition, and (3) the overruling of the wife’s demurrer to a counterclaim filed by the husband.
1. On the husband’s demurrer to the wife’s amended petition the question arises whether the Probate Court had jurisdiction to entertain the petition. The amended petition alleges that the stock certificates stand in the names of both parties as joint tenants in the form hereinbefore set forth; that they were bought by husband and wife with money which previously stood in savings banks and cooperative banks in their names “jointly with right of survivor-ship”; and that the husband refuses to transfer to the wife “hér share” of the stocks and of the dividends; and prays that the court determine the interest of the parties in the stocks and the dividends, and that the court order the husband to turn over to the wife “her interest ” in the dividends.
It is not difficult to discover reasons for the amendment of 1936. Causes of action in equity between husband and wife would commonly, if not always, relate to property rights, about which controversies are likely to arise at the time of divorce or separate support proceedings. Questions of title may well require decision before the court can deal properly with issues relating to alimony and to other forms of allowances under c. 208 or under § 32 of c. 209. The existence of a readily available method of settling disputes over property completely and finally in the same court which deals with the marital relations of the parties may be a substantial aid in the efficient administration of justice. Before the amendment of 1936 it had been held that libels for divorce were on the law side of the court, although the procedure was assimilated to that “in ecclesiastical courts or in courts of equity” (G. L. [Ter. Ed.] c. 208, § 33; Greenia v. Greenia, 206 Mass. 449, 450), and that a petition to determine the wife’s property rights could not be en-grafted upon a divorce proceeding. Patterson v. Patterson, 197 Mass. 112. Adams v. Holt, 214 Mass. 77. The statute of 1936 was intended to change the law as formerly declared.
The present case falls within the jurisdiction conferred by the amended statute. The original petition in equity was filed in the divorce case before the decree nisi was entered. Even when the amendment to the original petition was allowed the divorce cause was still pending, since the decree nisi had not then become absolute. G. L. (Ter. Ed.) c. 208, § 21, as amended by St. 1934, c. 181, § 1. Eldridge v. Eldridge, 278 Mass. 309, 312. Diggs v. Diggs, 291 Mass. 399, 401. We do not intimate that a petition in equity properly brought under the amended statute in the divorce proceeding might not be amended after a decree of divorce became absolute. Moreover, we see no reason why such a petition may not be carried on to a final decree of its own, whatever disposition may have been made of the main divorce cause in the meantime. After the question of title to property has been duly raised by
No question of want of parties is raised by the demurrer. If it had been, we see no reason why all the corporations which had issued the stock should be deemed necessary parties. See Bonner v. Chapin National Bank of Springfield, 251 Mass. 401, 409; Warecki v. United States Fidelity & Guaranty Trust Co. 270 Mass. 233.
It follows from what has been said that the husband’s demurrer to the wife’s petition in equity was rightly overruled.
2. There was no error in denying the wife’s motion to strike out portions of the husband’s answer. The motion was placed on the ground that these portions stated no defence. A motion to strike out a portion of a pleading on the ground that it states no case or no defence is anomalous, and a denial of it is not error. Marsch v. Southern New England Railroad, 230 Mass. 483, 491.
3. The material allegations of the husband’s counterclaim are, in substance, that the money with which the stocks were bought was his own; that it was mutually agreed and understood between the parties that the wife “would have no legal title to” the stocks; that the placing on the certificates of the names of both husband and wife “as joint tenants with the right of survivorship but not as tenants in common” was not “as a gift to her or an advancement or transfer of title or done with any intent to pass title to her ... or any present interest,” but was done with an understanding that they would remain the hus
The husband contends that these are allegations that the wife took her interest in the stock certificates on an express trust for his benefit. Whether her legal interest in the stock under this form of certificate was that of a tenant by the entirety or that of an ordinary joint tenant, and whether or not as a result of the divorce it became that of a tenant in common (see Ames v. Chandler, 265 Mass. 428; Splaine v. Morrissey, 282 Mass. 217; Childs v. Childs, 293 Mass. 67; Franz v. Franz, 308 Mass. 262, 265; Bernatavicius v. Bernatavicius, 259 Mass. 486), we see no reason why it could not be and remain charged with an oral trust in the husband’s favor. Buckley v. Buckley, 301 Mass. 530. Gibbons v. Gibbons, 296 Mass. 89, 91. Berry v. Kyes, 304 Mass. 56, 62, and cases cited. Levy v. Levy, 309 Mass. 486, 489, 490. Am. Law Inst. Restatement: Trusts, §§ 38 (3), 39. The question is whether the husband’s counterclaim sufficiently alleges such a trust. It is not as plain and categorical to that effect as it might be, and the allegations that the wife was to have no title, if taken literally, seem inconsistent with her holding anything in trust. But to take these allegations literally also seems inconsistent with other allegations and with the alleged intent to protect the wife if the husband predeceased her. Too much stress should not be placed upon particular words. On the whole, the allegations are so similar to those held good in the recent case of Gibbons v. Gibbons, 296 Mass. 89, that we do not feel at liberty to hold them insufficient to support a claim of trust. Compare Ciarlo v. Ciarlo, 244 Mass. 453. The demurrer does not purport to attack mere matters of form. See Clair v. Colmes, 245 Mass. 281, 284; Shea v. Shea, 296 Mass. 143, 147.
The decrees and order reported are affirmed. . An appeal
Ordered accordingly.