Bratt v. Cox

• Citation: 195 N.E. 787,290 Mass. 553
• Parties: BRATT v. COX et al.
• Decision Date: 02 May 1935
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

290 Mass. 553

195 N.E. 787

BRATT v. COX et al.

Supreme Judicial Court of Massachusetts, Norfolk.

May 2, 1935

Petition for instructions by Mattie O. Bratt, administrator with the will annexed of goods not already administered of the estate of Joseph H. Ordway, late of Brookline, opposed by Randall T. Cox, administrator, and others. From the decree Mattie O. Bratt, administrator, and one of the respondents appeal.

Decree reversed, and new decree ordered to be entered in accordance with opinion.

Appeal from Probate Court, Norfolk County.

T Lyons, Jr., of Randolph, stated the case.

W. B. Leach, of Cambridge, for C. H. Cox, guardian.

S. H. Lyon, of Boston, for Old Colony Trust Co., trustee.

J. P. Rooney, of Boston, for respondent R. T. Cox, administrator.

R. H. Oveson, of Boston, for respondent H. P. Pratt.

F. H. Tarr, Jr., of Gloucester, and R. T. Cox, of Boston, for Nellie G. Stowell and others.

M. O. Bratt, pro se.

RUGG Chief Justice.

This is an appeal from a decree entered in the Probate Court on a petition for instructions as to the distribution of certain bonds and accrued interest on certain savings bank deposits, brought by Mattie O. Bratt, administrator with the will annexed de bonis non of the estate of Joseph H. Ordway. The case was submitted to the trial judge upon an agreed statement of facts and certain uncontradicted and undisputed oral testimony. Thus it appears that Joseph H. Ordway died testate in January, 1932, leaving a widow and a daughter by a former wife, who is the present petitioner. By his will the widow was named executrix, and the bulk of his property was left to her ‘ for her life only, but with full power to use, sell, transfer and dispose of the same in any manner she may deem necessary for her benefit and enjoyment during her lifetime,’ with an admonition to provide for the support and comfort of his daughter, and the further provision that ‘ Should my daughter Mattie, without leaving issue, predecease my wife, then in that event, my wife shall have the power to dispose of all the property by testamentary provisions.’ ‘ All of said property which remains undisposed of at the death of my wife’ was left in trust for the daughter and her issue. The widow was appointed executrix in February, 1932, but died in the following December without completing her administration or filing any account. Among the assets left by the testator were two checking accounts in national banks aggregating almost $60,000 and deposits in savings banks. The checking accounts were changed into the name of the estate. They bore interest at the rate of one per cent. from October 19, 1931, to May 16, 1932, and at the rate of one half of one per cent. from the latter date to December 31, 1932. A safe deposit box in which the testator kept securities likewise was changed into the name of his estate. In April, 1932, the executrix gave up her own safe deposit box and moved her valuables into the box of the estate after pushing the valuables of the estate into the back part of the box so as to keep her property in the front separate from that of the estate. This was done pursuant to advice of her attorney. The executrix was worried about her income although she was receiving between $9,000 and $10,000 annually from property other than that provided for her under her husband's will. In March or April, 1932, she consulted a former business associate of her husband as to the investment of part of the estate in the checking accounts in the national banks to the end that more income might be received from them. He recommended the purchase of certain conservative bonds. Acting on that advice, she purchased bonds late in April to the value of $10,000, early in May to the value of $5,000, and late in July to the value of $10,000. In payment of these bonds she gave checks on the checking account of the estate signed by her, two as executrix and one as Grace P. Ordway, which, two days later, she wrote to the bank should have been signed as executrix. In June she paid to herself a widow's allowance of $2,500 from the checking account by a check payable to her own order drawn by her as executrix. After the death of the widow these bonds were found in the front of the safe deposit box with certain of her personal belongings, distinctly separated from securities formerly owned by her husband which were in the back part of the box. Coupons payable after the purchase and before her death were found uncut and attached to the bonds. No interest from deposits in the savings banks had been withdrawn.

The decree entered by the probate judge upon the present petition was that all the bonds purchased as above are the property of the estate of the widow. The correctness of this portion of the decree presents the only controversy now to be determined. The decree also provided that the income from savings bank accounts standing in the name of the testator from the date of his death to the date of the decease of his widow and the uncollected coupons on the bonds purchased by the widow after his death belonged to the estate of the widow. No question is raised concerning the correctness of this part of the decree and that ruling is conceded to be correct. G. L. (Ter. Ed.) c. 197, § 26; Old Colony Trust Co. v. Smith, 266 Mass. 500, 165 N.E. 657.

Appeals from the decree were taken by the present petitioner and by the succeeding trustee appointed under the will of the testator. Upon request the trial judge reported the material facts. That report is based primarily upon the agreed statement of facts, although certain findings are based...