Abrain v. Pereira

• Decision Date: 04 December 1957
• Citation: 336 Mass. 460,146 N.E.2d 360
• Parties: Albert J. ABRAIN, Administrator, v. Juliana C. PEREIRA et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 360

146 N.E.2d 360

336 Mass. 460

Albert J. ABRAIN, Administrator, v. Juliana C. PEREIRA et al.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Oct. 28, 1957.

Decided Dec. 4, 1957.

John B. Nunes, New Bedford, for respondent Perry.

Alfred J. Gomes, New Bedford, for respondent Pereira.

Before WILKINS, C. J., and WILLIAMS, COUNIHAN, WHITTEMORE and CUTTER, JJ.

CUTTER, Justice.

This is a petition by the administrator of the estate of Benjamin C. Pereira (hereinafter called the decedent) for instructions with respect to the proper distribution of a fund of $3,282. This fund was obtained (under a decree dated September 20, 1955), as an asset of the decedent's estate, by compromise of a suit in equity brought by the administrator, after his appointment, to recover for the estate a savings bank account which stood at the decedent's death in the name of the decedent as trustee for his sister Juliana C. Perira. The decedent died intestate leaving no widow or children. Juliana Pereira and the decedent's brother, John C. Perry, were among his heirs.

On August 31, 1955, John C. Perry appeared with friends at the office of the administrator's attorney 'and expressed a desire to release all of his interest in the * * * bank account.' The attorney 'prepared a release and assignments of * * * Mr. Perry's interest in * * * [the] account and had him sign it in the presence of a witness.' The document (attached to the petition and admitted, or not denied, in the answers) was under seal, released the administrator from all interests in the bank account which Perry might have, and assigned these interests to his sister Juliana. Perry's attorney thereafter informed the administrator's attorney that Perry 'was confused and wishes to revoke the release.' The judge found that the release 'was in full force and effect,' and that by it Perry 'waived any claim he had in the bank account.'

The foregoing material facts were reported by the probate judge in accordance with G.L. (Ter.Ed.) c. 215, § 11, as amended by St.1947, c. 365, § 3. The decree instructed the administrator to pay the fund to Juliana in accordance with the release and assignment. Perry appealed.

1. Since the evidence is not reported, this appeal must be decided solely upon the facts reported by the probate judge (or established by the pleadings, see Knapp v. Meehan, 287 Mass. 573, 575, 192 N.E. 20) together with any inferences which this court may draw from those facts. Vergnani v. Vergnani, 321 Mass. 699, 702, 75 N.E.2d 497; Tenczar v. Tenczar, 332 Mass. 105, 106, 123 N.E.2d 359. The 'Only question presented for our determination is whether the decree entered is supported by' these facts. Sidlow v. Gosselin, 310 Mass. 395, 397, 38 N.E.2d 665, 667. Briggs v. Briggs, 319 Mass. 149, 150, 65 N.E.2d 9.

2. The release and assignment was under seal. It manifested an intention to transfer Perry's interest in the account to his sister. Even if without actual consideration, it became irrevocable upon its delivery to the administrator's attorney, who, we infer, received it for the estate and the assignee, Juliana. See O'Gasapian v. Danielson, 284 Mass. 27, 31-32, 187 N.E. 107, 89 A.L.R. 1159; Geffen v. Paletz, 312 Mass. 48, 52, 43 N.E.2d 133; Restatement: Contracts, § 158(1), (2); Williston, Contracts (Rev. ed.) §§ 217, 438A-440, especially at page 1280. See also Sloan v. Breeden, 233 Mass. 418, 419, 124 N.E. 31. Compare Abbruzise v. Sposata, 306 Mass. 151, 153, 27 N.E.2d 722. No subsidiary facts found appear to be inconsistent with the probate judge's ultimate findings (see Colby v. Callahan, 311 Mass. 727, 729, 42 N.E.2d 801) and no such facts would give any basis whatsoever for the conclusion that there was any mutual mistake of fact or of law which would support rescission or reformation of the release or that it was obtained by fraud. The release and assignment having been executed by Perry, he 'had the burden of proving * * * facts showing his right to rescind it.' Barletta v. New York, New Haven & Hartford Railroad...