310 Mass. 395 | Mass. | 1941
This is a petition in equity in which the petitioner as he is administrator of the estate of Annestia E. Murrey, otherwise known as Annestia E. Murray, seeks to establish title to a deposit in the Worcester North Institution for Savings standing in the name of the intestate at the time of her death, and to compel Bernadette Gosselin Sheridan, hereinafter called the respondent, to deliver the “bank book” to him. The respondent claimed ownership of the deposit by virtue of an alleged “gift and transfer” thereof to her by the intestate.
After hearing, the judge entered a decree that the deposit in question and a deposit in the Clinton Trust Company (claim to which the respondent has waived) “are the property of the estate of . . . [the intestate].” The respondent appealed and at her request the judge filed a “Report of Findings of Material Facts.” The evidence is not reported. The report, however, does not comply with the requirements of G. L. (Ter. Ed.) c. 215, § 11 (see also c. 214, § 23), as established by many prior decisions of this court, since the report, so far as the deposit now in dispute is involved, consists for the most part of a recital of the testimony of certain witnesses, concerning which in important aspects no findings are made by the judge, although most of the testimony recited, if believed by him, would warrant if not require a finding of a perfected gift of the deposit by the intestate in her lifetime to the respondent. There is no ultimate finding by the judge in the report with relation to whether a gift of the deposit in question was in fact made to the respondent by the intestate, or whether at her death it constituted an asset of her estate.
Reports of material facts provided by G. L. (Ter. Ed.) c. 215, § 11, to be made in the Probate Court upon the request of any party entitled to appeal therefrom, are governed by the same principles as apply in cases of such reports in equity under c. 214, § 23, which is phrased in
When a judge makes a report of material facts under the statutes “he does not make a report of the evidence but recites certain facts which he considered as material and which in his opinion formed the basis of his decision. It is not a new or additional proceeding after the termination of the case by final decree, but is in the nature of an extension of the record in the form of a statement of facts in the mind of the judge when his decision was made, which, when included in the record, puts the case in proper form for hearing on the appeal.” Plumer v. Houghton & Dutton Co. 277 Mass. 209, 214. Where such a report is made and the evidence, as in the present case, is not reported under G. L. (Ter. Ed.) c. 215, § 12, the only question presented for our determination is whether the decree entered is supported by the material facts found by the judge under § 11; the report is regarded as a finding of all the material facts upon which his decision was founded, Topor v. Topor, 287 Mass. 473, 476, and “there is no room for any implication of further findings.” Birnbaum v. Pamoukis, 301 Mass. 559, 562. Bottoms v. Carlz, ante, 29, 33.
In the present case the principle that in the absence of a report of material facts the decree imports a finding of every fact essential to its entry is not applicable. Compare Harlow Realty Co. v. Whiting, 308 Mass. 220, 223, 224. It follows that resort may not be had to any findings that otherwise could be implied from the decree entered by the judge. Viens v. Viens, 302 Mass. 366, 367. Sullivan v. Quinlivan, 308 Mass. 339, 341. The decree must stand or fall upon the facts found in the report of material facts. Each of the parties in argument has treated the case as though the recitals of testimony by the judge constituted findings of fact. We cannot adopt that view since the testimony is in some respects conflicting.
In the case at bar the report of facts was irregular. The
The facts actually found by the judge with relation to the deposit in dispute may be summarized as follows: The intestate, who was a resident of Lancaster in this Commonwealth, died on June 18, 1939, leaving as her heirs at law certain nieces, nephews, grandnephews, and a grandniece, the respondent. The intestate had lived for four or five years with the respondent’s mother, where the respondent also lived. Upon the death of the respondent’s mother, the intestate and the respondent went to live with the respondent’s brother and his wife, where they were living at the time of the death of the intestate about a year and a half later. The name of the respondent had been written on the blank withdrawal order in the book of deposit and “the name” of Mrs. R. Layton was written as a witness. (Mrs. Layton was one of the witnesses at the hearing before the judge, whose testimony he recited in the report but as to which he made no material subsidiary or general findings.) The intestate did not sign the order. Two days before the death of the intestate, the respondent took this book of deposit from her (the respondent’s) tin box and noticed that the order had not been signed by the intestate. She then went to the savings bank but was advised by an
The burden of proof rested upon the petitioner to establish that title to the deposit in question was in the intestate at the time of her death. Upon the findings of the judge the proper conclusion is that the deposit in question stood in the name of the intestate upon the books of the savings bank at the time of her death. This being so, in the absence of any findings based upon the testimony the judge set forth in his report as to the circumstances under which the respondent acquired possession of the book of deposit, we cannot disturb the decree.
That the name of the respondent was written upon the withdrawal order by the intestate cannot avail the respondent. The statements of the respondent to her attorneys before referred to, her action in certifying the estate to be in an amount that included the deposit in question, and the fact that other than a deposit in the Clinton Trust Company of $111.50 (standing in the name
Decree affirmed.