Bannish v. Bannish
| Decision Date | 13 April 1970 |
| Citation | 258 N.E.2d 10,357 Mass. 279 |
| Parties | Mary BANNISH, executrix, v. Anna B. BANNISH, individually and as administratrix, et al. (and a companion case 1 ). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Socrates Geanacopoulos, Springfield, for petitioner.
Harold A. Murphy, Westfield, for respondents.
Before WILKINS, C.J., and SPALDING, KIRK, SPIEGEL and REARDON, JJ.
These are appeals from decrees denying two petitions for leave to file bills of review seeking review of final decrees of the Probate Court entered on June 16, 1967.
Two petitions in equity were brought by Mary Bannish, one by her as executrix of the will of Michael Bannish and the other by her individually, against Anna B. Bannish, individually and as administratrix of the estate of Joseph Bannish, and others, to enforce a resulting trust in certain real estate and personal property. The petitions were tried together before Judge Tisdale, a probate judge for the county of Franklin, sitting in the county of Hampden, during thirty trial days, in which some thirty-seven witnesses were heard. Final decrees, entered on June 16, 1967, dismissed both petitions. On June 19, 1967, Judge Tisdale was sworn in as a justice of the Superior Court, and, therefore, could no longer act in the cases. The petitioner filed a request for a report of material facts in each case on June 23, 1967. On June 28, 1967, the petitions for leave to file bills of review were filed. On July 3, 1967, the petitioner appealed from the final decrees entered June 16, 1967. 2 After hearing, decrees were entered denying the petitions for leave to file bills of review.
The petitioner argues that the denial of leave to file the bills of review was erroneous because the inability of Judge Tisdale to report the material facts as requested under G.L. c. 215, § 11, denied her effectual appeals from the decrees entered by him. Her argument rests on the assumption that without the requested reports of the material facts, no adequate appeals are possible. But that assumption is not correct. Here the evidence was reported. It was open to the petitioner to appeal and obtain an effectual review of her cases despite the absence of reports of material facts. Where a case comes to this court without a report of material facts but with a report of the evidence, the decree imports a finding of all facts, open on the evidence, needed to support the decree and such findings must stand unless plainly wrong. Berry v. Kyes, 304 Mass. 56, 57--58, 22 N.E.2d 622; Williams v. Howard, 330 Mass. 323, 325, 112 N.E.2d 247, and cases cited. The petitioner could have pursued the appeals claimed on July 3, 1967, which were seasonably taken, despite Judge Tisdale's inability to find the requested facts, and could have brought the cases here on all the evidence. She could then have us decide whether the evidence supported the findings of fact implied in the decrees. Virtually nothing more is open when a case comes here upon a report of material facts and a report of the evidence.
In urging that she has been harmed by the loss of reports of facts, the petitioner stresses the considerable amount of conflicting oral testimony introduced in the equity cases. This court, it is contended, cannot properly decide on a transcript of testimony 'questions of fact, the decision of which depended upon the observation of witnesses testifying orally and the weighing of their evidence.' Murphy v. Donovan, 295 Mass. 311, 315, 3 N.E.2d 734, 736. But, in an appeal on a report of all the evidence and findings of fact, whether such findings are express or those implied in the decree, we do not resolve conflicts in oral testimony.
The petitioner relies on Martell v. Moffatt, 276 Mass. 174, 176--177 N.E. 102, 103--104, where it was...
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