Brodrick v. O'Connor

• Decision Date: 27 May 1930
• Parties: BRODRICK v. O'CONNOR et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

271 Mass. 240

171 N.E. 479

BRODRICK

v.O'CONNOR et al.

Supreme Judicial Court of Massachusetts, Berkshire.

May 27, 1930.

Appeal from Probate Court, Berkshire County; A. M. Robinson, Judge.

Petition by John J. Brodrick, administrator de bonis non of the estate of Thomas C. O'Connor, deceased, opposed by James O'Connor and others, for an adjudication as to the ownership of numerous deposits in savings banks. From a final decree adjudging Belinda M. O'Connor to be the sole and absolute owner and from a decree denying a motion for the appointment of a commissioner to report the testimony, James M. O'Connor and others appeal.

Affirmed.

A. F. Flint, of Boston, for respondents James O'Connor and others.

D. P. Callahan, of Worcester, for respondent Belinda O'Connor.

RUGG, C. J.

This is a petition by the administrator of the estate of Thomas C. O'Connor for adjudication as to the ownership of numerous deposits in saving banks in this commonwealth. The issues raised were contested on the one side by certain heirs at law of the intestate and on the other by Belinda M. O'Connor. The judge of probate after hearing made a finding in favor of Belinda M. O'Connor, and entered a final decree adjudging that she was the sole and absolute owner of all such deposits at the time of the death of the intestate.

On request of the contesting heirs he made a full report of facts under G. L. c. 215, § 11. Thereafter the contesting heirs filed a motion that the ‘stenographer by whom the testimony at the hearing on the merits of this case, was reported’ be appointed a commissioner to report the testimony to the full court and that such appointment be made as of the date on which the hearing on the merits was commenced. This motion was supported by an affidavit setting out that the attorney for the contesting heirs before the hearing opened requested that the evidence be taken so as to be reported to the full court. A decree was entered denying this motion, it being recited therein that it appeared to the court that no request that the evidance be reported was made before evidence was offered.

Evidence cannot be thus reported as matter of right unless request is made before any evidence is offered. See G. L. c. 215, §§ 12, 13, and section 18, as amended by St. 1923, c. 392, and St. 1924, c. 194, § 1; G. L. c. 214, § 24. Lannin v. Buckley, 256 Mass. 78, 80, 81, 152 N. E. 71. Whether such request was made in the case at bar was a pure question of fact. It did not depend solely upon the affidavit presented. If such request had been made in writing and filed with the papers in the case, there would have been no room for misunderstanding. Therefore the contention is and must be that the request was made to the judge orally. Whether such request was made was a subject about which he had personal knowledge. He was not dependent entirely upon affidavits. In these circumstances his finding of fact on such a matter must stand and be accepted as true. See Commonwealth v. Dascalakis, 246 Mass. 12, 32, 33, 140 N. E. 470;Com. v. Devereaux, 257 Mass. 391, 395, 153 N. E. 881.

Whether the motion ought to have been granted rested wholly in the sound discretion of the judge. No abuse of such discretion is shown. Manning v. Mulrey, 192 Mass. 547, 551, 78 N. E. 551. There was no error of law in the denial of this motion.

The case is to be considered on the pleadings, the facts reported and the decree entered. The question presented is whether the conclusion reached is consistent with the facts found and whether the decree is within the scope of the petition and supported by the facts found.

Apparently the money represented by the bank deposits was accumulated by the intestate. He was pastor of St. Thomas Church in the town of Adams where he had lived and where his sister Belinda had been his housekeeper. She had for many years sacrificed herself and her future for the intestate and had given him great assistance in his work. For several years before his death there had been two groups of bank books which for convenience in the record are termed respectively group A and group B. All these deposits were in the names of the intestate and/or Belinda M. O'Connor. It is not necessary to go through these books one by one and recite the precise form of words in which each deposit stood at the death of the intestate. It is enough to say that some were simply in their two names, and some expressly were made payable to either or the survivor; one was in the name of Belinda alone with these words added, ‘May be drawn by her brother Rev. T. C. O'Connor.’ Group A was made up of books which were kept for years in a suitcase in the room of Belinda at the parish rectory. As to this group the finding was in these words: ‘I find that the bank books comprising Group A were given by the deceased to his sister, Belinda M. O'Connor, several years prior to his death and that on several occasions said deceased told her in the presence of witnesses that by means thereof he had well provided for her. Said Belinda M. O'Connor on these different occasions thanked him for the gift he had made her and showed her appreciation therefor. At different times the deceased computed for his sister Belinda the interest which had accrued on said books. * * * As time went by a discussion took place between the deceased and his sister Belinda as to the advisability of keeping said books at the rectory. Being afraid they might be stolen, the deceased finally went to the South Adams Savings Bank which is located at Adams, * * * and rented a safety deposit box * * * in the name of Thomas C. O'Connor or Belinda M. O'Connor. He received from the bank two pass keys, one which he delivered to Belinda M. O'Connor. She had this key at all times until lost at about the time of the death of the decedent. The bank books comprising Group A were put by intestate in this safety deposit box and remained there until his death. Under the rules of the bank,...