319 Mass. 253 | Mass. | 1946
The plaintiff in this bill in equity, filed in the Superior Court on May 25, 1937, was a citizen of the United States domiciled in France. The defendant Sedgwick Minot, hereinafter called simply the defendant (for
This bill in equity was brought in Massachusetts in order to reach funds held for the defendant by fiduciaries here. When the master made his report on June 7, 1943, only one set of fiduciaries remained as defendants. The final decree dismissed the bill as against them, and neither party contends that in that respect the final decree was wrong. The defendant appeared generally and submitted to the jurisdiction of the Massachusetts courts.
The plaintiff seeks relief for breach of a written agreement entered into by her with the defendant in Paris, France, on February 23, 1926. The agreement recited that the parties had permanently separated and wished to settle their property rights. The defendant agreed to establish a trust fund of $50,000 to be held by the United States Trust Company of New York as trustee under the terms of a trust indenture dated and executed by the defendant in Paris on January 18, 1926, but not executed by the trustee in New York until February 26, 1926, under which the income of the trust fund was to be paid to the plaintiff during her life. The plaintiff was to have the custody of the three children until the youngest should arrive at the age of sixteen years, and until that time the defendant
On April 17, 1942, the case was referred to a master under the form of rule set forth in Rule 86 of the Superior Court (1932) “to hear the parties, find the facts and report his findings to the court, together with such questions of law> arising in the course of his duty, as any party may request.” The master filed his report on June 7,, 1943. The defendant seasonably brought in thirty-three objections which were appended to the report, and as provided in Rule 90 of the Superior Court (1932) requested the master in writing to “append to his report, for the sole purpose of enabling the court to determine” the questions of law presented by certain of the objections, “a brief, accurate and fair summary of so much of the evidence as shall be necessary for such purpose,” with respect to the objections numbered 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 16, 20, 21, 22, 24, 27 and 30. The master reported what purported to be such a summary, except as to some objections that he deemed outside the requirement of Rule 90 as to summaries. The defendant moved to recommit the report with directions to report other and further evidence by way of summary, accompanying his motion by a supporting affidavit under Rule 46 of the Superior Court (1932). He also moved to recommit with directions to report other and further facts. The judge denied the motion to recommit “in the exercise of such discretion as I have in the premises,” but sustained exceptions numbered 14 and 15 relating to an arrangement made at Lausanne as described in paragraphs numbered 21 and 22 of the report. The master’s report as modified by the sustaining of those exceptions was confirmed, the other exceptions being thus impliedly overruled. The defendant appealed from the denial of
Before we can discuss the questions of fact and law arising on the report, we must disentangle the facts found from any asserted facts and evidence that we have no right to consider upon the merits of the case.
In dealing with a master’s report and the exceptions
Another elementary rule is that an exception to a master’s report cannot be sustained unless his error is demonstrated upon the face of his own report.
Rule 90 of the Superior Court (1932) provides the only means by which an excepting party as of right may obtain any summary of evidence. Buckley & Scott Utilities, Inc. v. Petroleum Heat & Power Co. 313 Mass. 498, 507, 508. Bouchard v. Bouchard, 313 Mass. 531, 534. The purpose of requiring a summary was to remove an anomaly, of infrequent practical importance (but see Meehan v. North Adams Savings Bank, 302 Mass. 357, 364, 365), by which findings of a master unwarranted by the evidence were more difficult to attack than the similar findings of a judge. Morin v. Clark, 296 Mass. 479, 482. The rule makes the right to a summary depend, among other things, upon a written request for a summary relative to an objection raising a question that “depends upon evidence not reported” (Watkins v. Simplex Time Recorder Co. 316 Mass. 217, 222), which question is not one of fact, but one of law (Milbank v. J. C. Littlefield, Inc. 310 Mass. 55, 59, 60; Buckley & Scott Utilities, Inc. v. Petroleum Heat & Power Co. 313 Mass. 498, 507, 508; Buckley v. John, 314 Mass. 719, 724) which the master must decide in the course of his duty rather than one for the judge upon the facts reported by the master. Buckley & Scott Utilities, Inc. v. Petroleum Heat & Power Co. 313 Mass. 498, 507, 508. General Outdoor Advertising
In the present case many of the exceptions take the point that on all the evidence some affirmative defence has been established as matter of law. The master refused to report a summary of evidence upon the objections that gave rise to those exceptions. Obviously the existence of any genuine and substantial question of law of that sort is most unlikely, and has not been made to appear even by the affidavit which accompanied the defendant’s motion to recommit for the purpose of causing a summary to be reported. A party cannot convert a question of fact into one of law by merely asserting that certain conclusions are required by the law, and thus cause practically all the evidence in the case to be summarized and reported. We find no error in the denial of the motion to recommit as to this matter.
As to other exceptions the master did report a summary of the evidence, but the defendant contends that the summary was not such as the rule requires. His remedy was to move to recommit the report with directions to report a proper summary. That remedy he adopted, and to ensure a hearing he should have supported his motion by affidavit showing what would be a proper summary, which affidavit , would be evidence before the judge. Rule 46 of the Superior Court (1932) (compare Common Law Rule 11 [252 Mass. 592]). Nagle’s Case, 310 Mass. 193, 198. Pearson v. Mulloney, 289 Mass. 508, 513. Morin v. Clark, 296 Mass. 479, 483, 484. Markey v. Smith, 301 Mass. 64, 75. Wilbur v. Newton, 302 Mass. 38, 45. Chopelas v. Chopelas, 303 Mass. 33, 36. Anderson v. Connolly, 310 Mass. 5, 10. Leventhal v. Jennings, 311 Mass. 622, 623. See also Coughlin v. McGrath, 295 Mass. 499, 504; Commonwealth v. Millen, 290 Mass. 406, 410; Nicoli v. Berglund, 293 Mass. 426, 429. We pass by the question whether the affidavit which accompanied his motion was sufficient in form where it did not show precisely what would be a proper summary but merely set forth evidence alleged to be “material.” Even if the affidavit was in proper form, on appeal from the denial of the motion to recommit the appellant must show error
As to the exceptions to the master’s report, many of them are worthless under principles already stated. Among those are exceptions to the failure to find other .or further facts. Some exceptions take the point that certain findings as to a transaction at Lausanne were in law unwarranted by the evidence. With respect to those exceptions the master reported a summary of evidence. The defendant argued against those findings on the ground of their alleged inconsistency with subsidiary findings, but did not argue that they were unwarranted upon the summary of evidence reported. We find no error in the action of the judge upon any of the exceptions.
In adopting Rule 90, the Superior Court realized that a party obtaining a summary of evidence supposed to be needed for the determination of some alleged question of law might be tempted to use it in argument upon the facts. Such a use, even if tolerated, would usually prove futile, because the summary would seldom be a complete statement of the evidence bearing on a fact. Rosman v. Rosman, 302 Mass. 158, 160. Wadsworth v. Richenburg, 303 Mass. 548, 550. Gordon v. Guernsey, 316 Mass. 106, 108. But the rule declares that a summary is "for the sole purpose of enabling the court to determine such question of law,” and plainly forbids any attempt to use it for any other purpose. Morin v. Clark, 296 Mass. 479, 483. Meehan v. North Adams Savings Bank, 302 Mass. 357, 362. Wadsworth v. Richenburg, 303 Mass. 548, 550. Buckley & Scott Utilities, Inc. v. Petroleum Heat & Power Co. 313 Mass. 498, 507, 508.
If the written agreement of February 23, 1926, is governed, as it says it shall be, by the law of New York, no reason appears why it should be held illegal. In New York a husband can contract with his wife. Charney v. Charney, 316 Mass. 580, 581, and New York cases cited. The defendant contends, however, that its validity must depend on the law of France where the parties were domiciled.
His first contention is that it is invalid because a part of a collusive arrangement for the obtaining of a divorce upon manufactured grounds. But the defendant, who has married again on the strength of the divorce, joins the plaintiff in admitting the validity of the divorce. When the agreement of February 23, 1926, was made, the parties had been separated for some months. The master found that at that time “the separation had already become permanent, and the plaintiff had determined to apply for divorce, for which she believed that she had or could establish a good cause.” That agreement, and the establishment of the $50,000 trust fund, he found, “in no way caused or induced the separation or the divorce which followed.” The agreement merely provided for the support of an already disrupted family. It was in no way conditional upon divorce, but was to be valid whether a divorce followed or not. The master found that the divorce was not collusive or based upon untrue grounds. These views were supported by the testimony of two experts in French law produced by the plaintiff, although another produced by the defendant disagreed.
These findings are not inconsistent with the subsidiary finding that the parties were already permanently separated when at the outset of the divorce proceedings the plaintiff caused a formal demand to be made upon the defendant by an officer, demanding that he receive her back as a wife, which demand the defendant refused in what he calls
The master found in favor of the defendant that any agreement to effect a separation, and to fix the financial and other conditions of separation, without legal proceedings, is illegal and void under French law, as is an agreement to consent to a divorce, even one for which lawful ground exists. But he found that the written agreement of February 23, 1926, was not the purchase of consent to a divorce or a means of facilitating the obtaining of a divorce, nor an agreement in violation of art. 307 of the French Civil Code which provided that separation from bed and board “cannot be effected by the mutual consent of the husband and wife.”
It is undisputed that the defendant did not perform his agreement to pay the plaintiff $625 a month for the support of the children. Accordingly the plaintiff was entitled to damages for the breach of that agreement.
The defendant by a counterclaim set up (a) an agreement by the plaintiff to pay over to him all the income of the $50,000 trust, and (b) a diversion by the plaintiff from the support of the children and a misappropriation by her to her own use of much of the money paid her by the defendant for the support of the children.
When the $50,000 trust fund was created, the plaintiff was hopeful of obtaining money from the estate of Charles A. Gould, her grandfather, the father of her deceased father. The grandfather had died in New York on January 6, 1926, leaving a large estate.
In the instrument creating the $50,000 trust, which the defendant executed on January 18, 1926, and the trustee executed in New York on February 26, 1926, he made the following reservation: “It is further understood and agreed that, in case the said Jane Gould Minot should receive during her lifetime from the estate of her grand-father, Charles A. Gould, deceased, an amount exceeding One Hundred and Fifty Thousand Dollars ($150,000) net of all taxes, fees and expenses, the party of the first part [the defendant] expressly reserves to himself the right to revoke this trust agreement entirely by an instrument in writing under his own hand and duly acknowledged so as to authorize it to be recorded.”
By his will Charles A. Gould bequeathed to the plaintiff’s mother nothing and to the plaintiff only $100. But a threatened contest of the will was compromised by the residuary legatees by their creating on December 4, 1926, out of money distributed to them under the will, a trust fund of $300,000, the income of which was to be payable to
The defendant obtained the plaintiff’s consent to the revocation of the $50,000 trust, and on March 20, 1926, the defendant undertook to revoke it. But the trustee was of the opinion, which turned out to be correct, that the defendant had no right to do so, and refused to recognize the revocation. In May or June, 1926, the plaintiff expressed her willingness to pay over to the defendant the income from that trust, since it could not be revoked. The master finds, however, that no contract was made between them at that time, and we see nothing in the record to show that he was wrong. But later, about July 1, 1927, the defendant saw the plaintiff at Lausanne in Switzerland where she was temporarily visiting her mother. After some discussion, both parties signed the following document which was writtén by the' plaintiff: “I agree to return to Sedgwick Minot the income from the [$50,000] trust fund that he established for me when I receive payment from the [$300,000] Gould Trust. But it is understood that if for any reason that may be those payments are discontinued I will keep the money from the trust fund
Nothing in the summary of evidence reported shows that the findings of the master as to the transaction at Lausanne were unwarranted by the evidence as matter of law. No subsidiary finding is so inconsistent with the conclusion that mutual contracts, each in consideration of the other, were made at Lausanne, that the master’s conclusion cannot stand. The plaintiff suggests that there was no evidence of the law of Switzerland with respect to the validity of these mutual contracts. The parties were no longer married; but, if they had been, a contract between spouses appears to be valid by the laws of France, Switzerland and New York. For the law of Switzerland, see Williams, Swiss Civil Code (1925) § 177; Shick, Swiss Civil Code (1915) § 177. The “cause” which is presumed to exist under French law is not required at all for the creation of a contractual obligation under Swiss law. Lorenzen, 28 Yale Law Journal 621, 642. Wettstein, Swiss Federal Code of Obligations (1928), especially § 3. The
The plaintiff contends that her contract to pay over the income of the $50,000 trust was invalidated by § 15 of the New York personal property law, (N. Y. Consol. Laws, c. 42) which provides that the “right of the beneficiary to enforce the performance of a trust to receive the income of personal property, and to apply it to the use of any person, can not be transferred by assignment or otherwise.” But even if the New York law had any application , to a promise by a resident of France with respect to her disposition of income after its receipt by her in France, the New York statute was not violated. The income was not “transferred” to the defendant contrary to the New York statute. As the City Court of New York said in a well reasoned opinion in the similar case of Bursch v. Bursch, 82 N. Y. L. Jour., 2426 (February 13, 1930), “There is no disturbance of the right of the beneficiary to receive the income from the trustee. The right to enforce the trust still remains with the cestui que trust.” See also In re Oakley’s Estate, 116 Misc. (N. Y.) 494. What the New York statute does is to convert every trust within its scope into a sort of spendthrift trust. Even in a spendthrift trust the beneficiary is free to dispose of the income once it reaches his hands. Am. Law Inst. Restatement: Trusts, § 152, comment j.
From what has already been said, it appears that the plaintiff violated the Lausanne agreement first in 1928, when she failed to pay over to the defendant the income of the $50,000 trust. Instead of suing her for her breach of contract, the defendant waited until late in 1932, when he caused proceedings to be begun in New York to determine the validity of his attempted revocation of that trust. If that was merely the common case of an election of remedies, the fact that he chose a remedy that turned out not to exist would not prevent his subsequent resort to the right remedy by claiming damages for the plaintiff’s
The plaintiff contends that the claim of the defendant was not properly asserted by a counterclaim under Rule 32 of the Superior Court (1932). The counterclaim, whether equitable or legal in its nature, arose “out of the transaction which is the subject matter of the suit,” namely, the written agreement of February 23, 1926, as modified by the Lausanne agreement, which settled the property rights of the separated or divorced spouses. In our opinion the counterclaim was proper.
Even if under French law the money owed by the parties to each other was in law set off by a principle called “compensation” as soon as their respective obligations became payable (French Civil Code, arts. 1234, 1289, 1290; Willis-
In his answer the defendant asserted as a second ground of counterclaim that the payments made by the defendant of $625 a month under the written agreement of February 23, 1926, “were received in trust for the sole and express purpose of application to the maintenance and support of said children,” and that the plaintiff had diverted to her own use large parts of such payments. He prayed for an accounting and the repayment of such parts to the defendant, since all the children have become sixteen years of age. “This matter was mentioned by counsel for the defendant in his opening statement at the beginning of the hearings before . . . [the master] but was not again brought to . . . [his] attention until” after the evidence had been concluded. “No evidence whatever was introduced by either party as to the use made by Mrs. Minot of the sums paid to her under this agreement. It is undisputed that the children were in her custody during the whole period covered by the agreement, that they lived with her most of the time and that she provided their maintenance and support.” The defendant raised the question by his exception numbered 16, which caused a slight change in the findings. But the record contains nothing to show that the second ground- of counterclaim was based on anything substantial, or was other than a fishing expedition. Besides,
No dispute of any consequence arises as to the computation of damages. We find no error in any of the interlocutory decrees, and they are all affirmed. We think that .the final decree should be modified by striking out the paragraph numbered 4, which deals with the payment to the defendant of the future income of the $50,000 trust. The present decision will probably prevent controversy as to future income. Whitney v. Whitney, 316 Mass. 367, 370. As so modified, the final decree is
Affirmed.
Exceptions in equity, of which exceptions to a master’s report constitute the most common but not the only example (O’Brien v. Keefe, 175 Mass. 274; Indrisano’s Case, 307 Mass. 520), are not to be confused with statutory exceptions under G. L. (Ter. Ed.) c. 231, §§ 113, 144, which originated in law actions but have long extended to equity cases as well. Indrisano’s Case, 307 Mass. 520, 522. Those statutory exceptions reach nothing but errors of law, even in equity cases. Dorr v. Tremont National Bank, 128 Mass. 349, 354, 357. Kennedy v. Welch, 196 Mass. 592, 594. Bartley v. Phillips, 317 Mass. 35, 42, 43. But they reach errors not appearing upon the record until a bill of exceptions has been allowed to make them a part of the record.
Exceptions to master’s reports often are addressed to alleged errors of fact. For examples, see Handy v. Miner, 265 Mass. 226, 228; Epstein v. Epstein, 287 Mass. 248, 254; MacLeod v. Davis, 290 Mass. 335, 337; Carilli v. Hersey, 299 Mass. 139, 143; Nelson v. Bailey, 303 Mass. 522, 527; Frawley v. Forrest, 310 Mass. 446, 456. A question whether an inference or conclusion of fact drawn by a master from subsidiary findings is proper requires no exception in order to raise it. United States Fidelity & Guaranty Co. v. English Construction Co. 303 Mass. 105, 111, 112. Ferrone v. Rossi, 311 Mass. 591, 595. Distasio v. Surrette Storage Battery Co. 316 Mass. 133, 135. But an exception often is used to raise such a question.
“An exception to a master’s report in equity ... is the act of appealing from rulings appearing of record, and nothing more.” O’Brien v. Keefe, 175 Mass. 274, 276.
Cachard, French Civil Code (Rev. ed. 1930). In Wright, French Civil Code (1908), the translation reads, “Parties cannot obtain a separation by mutual consent.” The original French text is “elle [i.e. a judicial separation, or “séparation de corps”] ne pourra avoir lieu par le consentement mutuel des époux.” Carpentier, Codes et Lois (1897).
Cachard, French Civil Code (Rev. ed. 1930). The translation in Wright, French Civil Code (1908) is not materially different.
Cachard, French Civil Code (Rev. ed. 1930) art. 1131. Wright, French Civil Code (1908) art. 1131. Amos & Walton, Introduction to French Law (1935) 162, 165.
“Where in the case of bilateral contracts a debtor is in default, the creditor is entitled to give him a reasonable time limit for subsequent performance or to have such time limit fixed by the competent authorities. In default of performance within such time limit, the creditor may still sue for performance and damages for delay, but in lieu thereof, he may, if he gives immediate notice to that effect, forego subsequent performance, and at his option, either claim damages for non-performance or withdraw from the contract.” Wettstein, Swiss Federal Code of Obligations (1928) § 107.
“The law always implies a condition dissolving the contract in the case of bilateral contracts when one of the parties does not fulfil his engagement. In such a case the contract is not dissolved ipso facto. The party who complains that the other party has not fulfilled his engagement to him has the option of either forcing him to fulfil his contract (when that is possible) or of insisting upon the contract being dissolved with damages and interest. The dissolution of the contract must be claimed from the court. The court may give the defendant time if it thinks the circumstances warrant it.” Wright, French Civil Code (1908) art. 1184.