Berger v. Berger
| Decision Date | 06 February 1956 |
| Citation | 132 N.E.2d 179,333 Mass. 540 |
| Parties | Barbara BERGER v. Isabel K. BERGER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Joseph F. Coughlin, Boston, for plaintiff.
Morris Michelson, Boston, for defendant.
Before QUA, C. J., and RONAN, WILKINS, WILLIAMS and WHITTEMORE, JJ.
This is a suit for an accounting by the defendant as trustee for the benefit of the plaintiff of an account in the Merchants Co-operative Bank in Boston. The case was referred to a master under a rule to hear the parties, find the facts, and report his findings with such questions of law as any party might request. It is before us on the defendant's appeals from the denial of her motion to recommit, from an interlocutory decree overruling her exceptions to and confirming the report, and from a final decree which established the defendant's indebtedness and ordered her to pay the amount of such indebtedness to the plaintiff with interest.
The findings of the master were in part as follows: The defendant and her husband, Samuel L. Berger, having no children, adopted the plaintiff as a baby in January, 1926. In April of that year the defendant subscribed for forty shares in the Merchants Co-operative Bank in her own name and for ten shares in the same bank in her name as 'trustee for Barbara Berger.' The account opened in her own name was numbered 36878 and the account in her name as trustee 36879. The defendant made the initial payment on the shares for Barbara from her own funds and thereafter, until 1932, made the required monthly payments of $10 from a joint checking account which she maintained with her husband. When this checking account was closed on April 5, 1932, she withdrew $690 from account 36879 and with the money opened a checking account in her own name in the Newton Trust Company. She continued to maintain account 36879 and subscribed as trustee for twenty additional shares. Until 1938 she made payments on the shares from her personal funds or from a new joint checking account which she had opened with her husband in 1933. On August 20, 1942, the sum of $2,200 was withdrawn from account 36879 and used by her husband in his business. The amount of this withdrawal was replaced about two months later. The bank shares in account 36879 matured in November, 1945, and on November 29 the defendant received a check in the amount of $4,000 from the bank which she deposited in her personal checking account in the Norfolk County Trust Company. Other findings, which it is unnecessary to recite in detail, related to the manner in which the defendant dealt with accounts similar to that in the case of Barbara which the defendant had opened in her own name as trustee for two children who were born to her after Barbara was adopted.
In conclusion the master found that it was the intention of the defendant and her husband, from whom, incidentally, she is now divorced, to create a trust for the plaintiff; that they established a trust for her; that the plaintiff had notice of the existence of this trust; that she impliedly accepted the same; that she made a demand on the defendant for the moneys in the account prior to the withdrawal of November 29, 1945; that this withdrawal was without the knowledge and consent of the plaintiff; and that it constituted a misappropriation for which no accounting has been made. He also found that the plaintiff was not guilty of laches and stated that 'I find for the plaintiff in the sum of $4,000, together with interest thereon from November 29, 1945.'
There are appended to the report fifteen objections of the defendant which under Rule 90 of the Superior Court (1954) are deemed to be exceptions. Also included in the report, on request of the defendant, is a summary by the master of the evidence which relates to his rulings upon the admissibility of evidence. Joyner v. Lenox Savings Bank, 322 Mass. 46, 58, 76 N.E.2d 169.
Exception 1 was to the finding that the plaintiff made a demand upon the defendant, on the ground that there was no evidence to support it, and exception 2 to the failure to find that the notice to the plaintiff of the existence of the trust was obtained from a person other than the defendant. There being no general report of the evidence these exceptions were properly overruled. Minot v. Minot, 319 Mass. 253, 259, 66 N.E.2d 5. Exceptions 3 and 4 were to the findings that the defendant misappropriated $4,000 and was liable to account to the plaintiff for this sum with interest, the stated reason being that matters of law were involved upon which the master had no authority to rule. If there were errors in overruling these exceptions they become of no consequence in view of the disposal which is to be made of the case. Exceptions 5 and 6 were to the admission of certain testimony of Berger, the defendant's former husband. It was admitted de bene and, no motion having been made to strike it out, was evidence proper for consideration by the master. Haskell v. Cunningham, 221 Mass. 49, 53, 108 N.E. 915. Alden Bros. Co. v. Dunn, 264 Mass. 355, 362, 162 N.E. 773. Exception 7...
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