O'brien v. Keefe

Decision Date28 February 1900
Citation175 Mass. 274,56 N.E. 588
PartiesO'BRIEN v. KEEFE et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

The following are the exceptions of plaintiff to the report of the master:

'This is a bill in equity, brought by the plaintiff to enforce a trust, as is set forth in the master's report, to which reference is hereby made.
'Exception 1. The plaintiff testified in part as follows: 'After my mother died, my sister (the defendant) and I were standing on the sidewalk, and she said: 'I want to give you a thousand dollars for this place, and I will see that you never want.' I told her she was trying a pretty business after promising a dying man as she did, and we had some more cross words. After that I met her one night on the corner near my house and she said: 'You're just the fellow I'm looking after. I suppose you know what I am here for.' I said: 'No.' She said 'After rent. You will either pay my rent or get out.' I said: 'Rent of what? My own house? I won't pay you a cent a year. Pay rent for my own house? I won't get out till the court puts me out.' I have always lived on the premises, either in the large house or in the little house that's fixed over.' The defendant Ellen F. Keefe testified: That the barn was fixed over into a house, the work being paid for by the mother and the plaintiff went into possession; but it was understood between them that, if he paid the taxes, that would be called his rent. That the plaintiff paid the taxes only by her advancing him the money. That the property had never been repaired since the death of the testator,--nothing had been done. 'If a board falls off, it stays; if a nail is wanted, it isn't put in there is a barrel of newspapers over the floor; and the water has been in the cellar of the house since his death.' The plaintiff offered to show that he had paid certain bills for taxes, repairs, and improvements; but evidence as to these payments was excluded upon objection by the defendant. The plaintiff duly objected and excepted to this exclusion of evidence offered by the plaintiff on the ground that it was alleged by the plaintiff that he was and had been in possession of the premises under a claim of right; that he had expended considerable sums of money for repairs, taxes, and permanent improvements upon the same, and was entitled to show said expenditures in support of his said allegation.

'Exception 2. The plaintiff, on cross-examination, identified a certain paper writing exhibited to him as being his handwriting, and being a portion of a letter written to the defendant by him. This portion of a letter was admitted in evidence, marked 'Exhibit No. 8.' The plaintiff duly excepted, on the ground that this portion of a letter could not be introduced in evidence by the party in whose custody the same had remained since it had been written, against objection, until evidence had been furnished the court giving reasonable explanation why the whole of the same was not produced.

'Exceptions 3, 4, 5, and 6. John E. Sullivan, a witness for the plaintiff, testified as follows: 'Q. Have you got a house anywhere? A. A house? No, sir. Q. Got a place where you live out in the woods somewhere? A. Out in the woods? The Master. Answer the question, whether you have a house. Q. Do you own any house? A. No, sir. Q. Ever own one? A. No, sir. Q. Ever hire one, or occupy a house in rather a lonesome spot? Have you occupied a house or a hut on a hill just off of North street? A. No, sir. Q. Never occupied one there? A. Yes, sir; I did Fourth of July,--a crowd of us. Q. Men and women both? A. No women there at all, sir. Q. It took you some time, didn't it, to get at the fact? A. No, sir; that is years and years ago. I don't know but it's twenty years ago. Q. Do you know anything about it, whether it's twenty or three? A. It is so long ago. God knows whether it is. It is a long while ago. A crowd of us went up there Fourth of July. Q. You have occupied it at no other time? A. No, sir. Q. Are you the Sullivan who was arrested and convicted of being drunk about the 16th day of July, 1887? (Objection and exception.) Q. What do you say about that? A. I wouldn't say anything. I don't remember anything about it. Q. And you mean to say on your oath to the court that you don't remember whether you are the person or not, who was arrested and fined for being drunk at about the time I have said? A. Yes, sir. Q. Well, are you the person--the Sullivan--who some time after was arrested by Mr. Savage and fined for an assault? (Objection and exception.) A. I don't remember it. Q. Don't remember? A. No, sir. Q. Can't say on your oath whether you was or was not? A. No, sir. Q. Are you the Sullivan who was arrested for indecently exposing your person, and tried and convicted? (Objection and exception.) A. No, sir. Q. You mean to say there was no such charge against you? A. No, sir. Q. And you were never brought into court on any such charge? A. No, sir; if there was anything like that, it was faked up, and born in sin and iniquity. If any such charge was made against me, it was without my knowledge. I never knew such a thing; never was done; no such thing as that; and if that was faked up, I know who done it,--the same person that has been prosecuting me for years and years. Q. Any person in this case? A. I don't know about that. It's no such thing, anyway. Q. Are you the Sullivan who was fined for being a common drunkard? (Objection and exception.) A. No, sir; never any charge of common drunkard against me; no, sir. Q. Upon which you were committed to Salem jail? A. No, sir; no such thing. Q. You mean you were committed to Salem jail? A. Never was fined, and never was committed for a common drunkard on any such charge--(Objection by Mr. York.) Mr. Moulton. What I wanted to know was whether you were committed to Salem jail at all. This is to understand the testimony clearly. I ask whether he means to say he was not committed to Salem jail at all, or whether he was not committed on the charge of being a common drunkard. (Objection by Mr. York. Discussion.)' To each of the questions indicated above, the plaintiff duly objected, on the ground that a court record must be produced before any such question could be admitted; that there was no basis for such questions; that no such charges had ever been made; that the defendants had no such records in their possession, and knew there were no such records, and did not intend to produce any; and that said questions were asked for the sole purpose of confusing and discrediting the witness.

'Exception 7. James W. Bradley, a witness for the defendant, and formerly chief of police at Rockport, subject to the objection and exception of the plaintiff, testified as follows: 'Q. Do you know whether there are any records about Mr. Sullivan? A. I don't know where there are any court records. I know---- Q. What do you call 'court records'? A. That is made by the court; I suppose they call them court records; made by the justice at the time of the trial. Q. Well, have you got any papers with you? A. Yes, sir; I have got my daybook that I used to keep. Q. But not any court records? A. No, sir. Q. Well, you have known Mr. Sullivan for a good many years? A. Quite a number of years.' The plaintiff duly excepted, on the ground stated above under the last four exceptions, and on the further ground that this was an attempt to prejudice the court against the witness, and to affect his credibility by testimony that the chief of police had private records in his daybook concerning the witness, in place of the proof of records required by law.

'Exception 8. The defendant Ellen F. Keefe testified: 'I furnished my stepfather money to build the old house and the new one. I never would keep any account. I'd let him have twenty-five dollars, or fifty; what he wanted; whatever I happened to have in my pocket. I wouldn't count it exactly; just pass it over to him. This was not for rent. I paid thirty dollars a year rent besides. After I moved to Gloucester I always called on them to see their needs and wants, and make them as happy and comfortable as I could,--sometimes once a week, sometimes twice a week; and if I didn't call they (my father and mother) would send for me. I furnished them provisions, clothes, and bedding to quite an amount, if I could reckon it up. As to the extent and kind of provisions, it didn't take a great deal to support two, while he was a sick man, and I continued to do that as long as he was sick. As nearly as I can carry it in my head, I gave my father somewhere around fifteen or sixteen hundred dollars. He never had any trouble in getting money from me. He had no need to go outside of me if he wanted any money. There was no receipt required; not even the scratch of a pen.' The witness testified that she did not remember one occasion when her father wanted money to bridge him over a little while, when he sent up to her husband for it, and a note on demand, with interest, was sent down for him to sign; that she did not remember her step-father calling her attention to the matter, and that he was shedding tears at the time, and saying it was ungrateful. She further testified that she gave her mother money, as well as her father, and had been supporting them; that she could not explain how her mother was found to have three hundred dollars at his (her father's) decease, when she herself had been supporting the family; and that it did not occur to her to ask an explanation. It was further introduced in evidence that the defendant Ellen F. Keefe had filed in court a petition for license to sell the real estate belonging to the estate of the testator for certain bills due her, which were as follows:

Bill dated 1888 and 1889.

To care of deceased (Mr. O'Brien), a


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