316 Mass. 593 | Mass. | 1944
Following the decision in this case reported in 311 Mass. 709, there was a hearing on the petition and the counterclaim, both of which sought an adjudication of the ownership of certain stock certificates, standing in the name of "Angus D. MacLennan and Mary R. MacLennan as joint tenants with the right of survivorship and not as tenants in common.” A final decree was entered which stated that the recording of the name of the petitioner "as a joint tenant with the right of survivorship . . . was not an outright gift or advancement or transfer of title,” and that the said securities are the sole property of the respondent. The decree ordered the petitioner "to assign, transfer, and issue any necessary releases, in respect to each and every certificate of stock,” ordered the State Street Trust Company (which does not appear in the record as a party) to deliver the said securities to the respondent, and dismissed the “bill of complaint.” See Burroughs v. Wellington, 211 Mass. 494, 496. The petitioner appealed. There
It is the duty of this court to examine the evidence and to decide the case on its own judgment, giving due weight to the findings of the judge, which will not be reversed on oral testimony unless plainly wrong. Trade Mutual Liability Ins. Co. v. Peters, 291 Mass. 79, 83-84. Old Colony Trust Co. v. Yonge, 302 Mass. 49, 50. Hiller v. Hiller, 305 Mass. 163, 164. In this case no question of belief or disbelief of oral testimony is present, for, as will appear hereinafter, there is no variation in any essential respect in the testimony of the petitioner and the respondent, who were the only witnesses called. Compare Vergnani v. Guidetti, 308 Mass. 450, 455. Inferences of fact may be drawn, and no weight is to be attached to inferences drawn by the trial judge. Malone v. Walsh, 315 Mass. 484, and cases cited.
By stipulation the rights of the parties are to be determined as if the petition had been filed after June 9, 1941, when their divorce became absolute.
In the report of material facts it appears with full support from the evidence that in February, 1928, the respondent, a, widower, proposed marriage to the petitioner. On the following day he wrote her a letter stating that “in the event of their marriage, he desired to assure to her the same protection he had given his first wife, namely, putting his money in a joint account because a will would require probate and might be contested, whereas the suggested method for collection of the money in case he predeceased her would merely require the presentation of a death certificate at the bank.” The judge rightly found that it was the fact, as testified by the petitioner, that the respondent wrote “and told me exactly what he had, and showed how he would take care of me in case he died . . . [and] if I married him he would put everything jointly in his name as well as mine . . . and that would take care of me in case he died; that there wouldn’t have to be any will and there would be no contest; that I merely would have to take a death certificate to the bank and I could obtain the money.”
The report of material facts also stated by way of inference, “I find, that . . . the phraseology used on the certificates . . . was put there on the respondent’s instructions in order to protect the petitioner in case he predeceased her.” We draw the same inference. The report further stated by way of inference: “I find that the respondent never had any intention to vest a present interest in the petitioner either as to his original funds in various banks or such stock certificates as were subsequently purchased in the names of the two parties jointly. I find that the intention of the respondent was wholly testamentary, and was understood so to be by the petitioner, and that the petitioner therefore acquired no beneficial interest in the securities.” With these inferences we cannot agree. The testimony of both the petitioner and the respondent was in
In the view we have taken it is unnecessary to consider whether subsequent statements of intention made by the respondent were properly admitted in evidence.
The final decree is reversed, and a new decree shall be entered providing that the stock certificates are held in joint account by the petitioner and the respondent in accordance with the intention of the respondent as herein-before set forth, and ordering the petitioner to do such acts as may be necessary from time to time to give effect to the right of control of the stock certificates reserved by the respondent. Costs and expenses of this appeal in an amount to be determined by the Probate Court are to be allowed, to be paid by the respondent to the petitioner.
So ordered.