American Employers' Ins. Co. v. Webster

• Decision Date: 09 December 1947
• Citation: 76 N.E.2d 130,322 Mass. 161
• Parties: AMERICAN EMPLOYERS' INS. CO. v. WEBSTER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

322 Mass. 161

76 N.E.2d 130

AMERICAN EMPLOYERS' INS. CO.

v.WEBSTER et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Dec. 9, 1947.

Suit by American Employers' Insurance Company against Lillian Webster and others to apply named defendant's interest in her deceased husband's estate against her liability to reimburse plaintiff for loss sustained as surety on named defendant's bond as guardian of her husband, claiming as part of assets of estate portion of money paid by plaintiff as surety on the guardianship bond and deposited in bank in the name of decedent's niece. The administrator of decedent's estate intervened. From a final decree establishing named defendant's indebtedness but dismissing the bill as to the other defendants, plaintiff and intervenor appeal.

Decree affirmed.Appeals from Superior Court, Middlesex County; Good, Judge.

Before QUA, C. J., and LUMMUS, RONAN, SPALDING, and WILLIAMS, JJ.

H. R. Bygrave, of Boston, for plaintiff.

F. J. Garvey, of Lowell, and H. L. McLaughlin of Lowell for Fox, Administrator.

E. W. Hadley, W. F. Costello and M. W. Cohen, all of Boston, for Mary I. Rowe.

RONAN, Justice.

The defendant Lillian Webster on October 20, 1931 was appointed guardian of her husband, Ray F. Webster, but having failed to administer her trust in accordance with law, she was discharged as such guardian in 1943 and after a hearing upon her accounts she was charged with a sum in excess of $50,000. The plaintiff was surety upon her bond as guardian and was ordered by the Probate Court to pay this sum to Ray F. Webster. We assume, as did the parties, that no succeeding guardian was appointed. This amount was paid on January 10, 1945, by check of the plaintiff, payable to Webster and his attorney. The attorney conferred with the defendant Mary I. Rowe, Webster's niece, and prepared an order authorizing him to pay to her ‘the proceeds of my settlement’ with the surety. Webster signed this order. The attorney retained $20,000 and paid the balance to Miss Rowe in two checks, one for $500, the proceeds of which she gave to Webster, and the other for $29,500 which she deposited in her name in a Boston bank. Webster died intestate on October 6, 1945, leaving his wife and two children. When the wife obtained the bond from the plaintiff, she agreed to reimburse it on account of any loss that it might sustain by reason of becoming surety. The plaintiff brought the present bill to reach and apply the interest of the widow in the estate of Webster, contending that the balance in the bank account which originated in the deposit of $29,500 was held in trust by Miss Rowe for the benefit of Webster and became an asset of his estate. The defendant Rowe claims the money of this deposit as her own individual property, as a gift from Webster. The judge found that Webster had made an actual and outright gift of the $30,000 to this defendant. The plaintiff and the intervener, the administrator of Webster's estate, appealed from a final decree establishing the indebtedness of the widow and dismissing the bill as to the other defendants.

We have examined the evidence, which has been reported, and it is out duty to decide the case according to our own judgment, giving due consideration to the findings of the trial judge which are not to be reversed unless they are plainly wrong. Trade Mutual Liability Ins. Co. v. Peters, 291 Mass. 79, 84, 195 N.E. 900;Barnum v. Fay, 320 Mass. 177, 180, 69 N.E.2d 470;Allen v. Moushegian, 320 Mass. 746, 752, 71 N.E.2d 393. Whether Miss Rowe received the money as a gift or as a trustee for the benefit of her uncle was a question of fact, Briggs v. Leonard, 261 Mass. 381, 158 N.E. 794, which was to be determined upon conflicting oral evidence, given entirely by interested witnesses. Howe v. Ripka, 199 Mass. 359, 360-361, 85 N.E. 88;Harding v. Studley, 294 Mass. 193, 194-196, 200 N.E. 916. The capacity of a witness to induce a belief upon the part of the trial judge in the truth of his testimony may depend to a considerable extent upon the appearance of the witness and his manner of testifying. Intelligent scrutiny of a witness while testifying aids a judge in deciding what credence should be attributed to his spoken words. Tuells v. Flint, 283 Mass. 106, 109, 186 N.E. 222;City of Boston v. Santosuosso, 307 Mass. 302, 343, 30 N.E.2d 278. The judge who saw and heard the witnesses has in this respect an advantage over us, who must depend upon the printed record. The question we have to decide is not what opinion we might come to on the printed record alone but whether it can be properly said that the findings of the judge who saw and heard the testimony are plainly wrong. Berman v. Coakley, 257 Mass. 159, 162, 153 N.E. 463;Buckley v. Buckley, 301 Mass. 530, 17 N.E.2d 887.

The evidence need not be narrated in any detail. It is enough to say that it disclosed that Webster since 1933 had lived with his mother, with whom his niece, Miss Rowe, resided, and that he continued to live with them after Miss Rowe had taken over the household until he died in 1945; that Webster had been a druggist owning five stores, but had used liquor to excess and had become unable to manage his property, and was unemployed for considerable periods of time; that when he was able he paid his board and room, but for a number of years, notably from 1937 t...