296 Mass. 181 | Mass. | 1936
The plaintiffs, as executrices of the will of Fannie Fitzgerald, seek by this suit in equity to compel the defendant to transfer to them certain securities, alleged to be the property of the estate of the testatrix.
The answer of the defendant is improper in form. It consists simply of general denials of the allegations of the bill, except that two paragraphs as to formal matters were admitted. This is not in conformity to Rule 29 of the Superior Court (1932). Burke v. McLaughlin, 246 Mass. 533, 537-538. No objection appears to have been made to the answer. The case has been fully heard. It will be considered as if there had been a proper joinder of issues. Volpe v. Sensatini, 249 Mass. 132, 134.
The case was referred to a master, whose report contains a full recital of the facts found. The evidence is not reported. Therefore, the findings of fact made by the master must be accepted as true, since they are not inconsistent or plainly wrong. O’Brien v. Gove, 208 Mass. 325. Glover v. Waltham Laundry Co. 235 Mass. 330, 334.
The facts pertinent to the grounds of this decision are these: The testatrix was an alert and intelligent business woman of varied training and experience. Early in 1933, she suffered a shock, which materially affected her speech and powers of locomotion. In March, 1933, she went to live with the defendant, who was the widow of a deceased brother of the testatrix. The testatrix executed a will, which has been duly proved and allowed, wherein legacies and articles of a personal nature were left to friends. The defendant was left $2,000, to be paid out of earnings of real estate in Canada, and, if that real estate was sold, the proceeds were to be used in paying this legacy. In March, 1933, the testatrix executed a note in the sum of $390, payable in three months to the Brockton Savings Bank. Certain stocks of the testatrix, having a market value of about $1,800, were pledged as collateral for this note, which was in the usual form and which provided that the market value of the securities should at all times be twenty-five per cent more than the amount of the note. While the testatrix was living with the defendant, she be
Parol evidence rightly was received in this suit in equity to show the real nature of the transaction between the parties. The defendant cannot in the circumstances disclosed properly claim absolute title to the stocks, which neither party to the instrument intended should be trans
Decree affirmed with costs.