Crosier v. Kellogg

• Decision Date: 20 October 1911
• Citation: 96 N.E. 76,210 Mass. 181
• Parties: CROSIER et al. v. KELLOGG et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

210 Mass. 181

96 N.E. 76

CROSIER et al. v. KELLOGG et al.

Supreme Judicial Court of Massachusetts, Hampshire.

October 20, 1911

COUNSEL

Wm. J. Reilley, for plaintiffs.

John C. Hammond and Thos. J. Hammond, for defendants.

OPINION

BRALEY, J.

The order of reference did not require the master to report the evidence, but only such facts and questions of law as either party might request, and his findings of fact upon unreported evidence cannot be reviewed or revised on the exceptions taken by the plaintiff to his report. East Tennessee Land Co. V. Leeson, 183 Mass. 37, 66 N.E. 427; Sawyer v. Commonwealth, 185 Mass. 356, 359, 70 N.E. 438; Taber v. Breck, 192 Mass. 355, 78 N.E. 472; Kennedy v. Welch, 196 Mass. 592, 594, 83 N.E. 11.

The motion to recommit, and that the evidence upon which the findings rested be reported, was addressed to the sound discretion of the trial court, and nothing appears in the record to indicate that the denial of the motion was wrong. Henderson v. Foster, 182 Mass. 447, 65 N.E. 810; Duffy v. Hogan, 203 Mass. 397, 89 N.E. 630.

But if the interlocutory decree should not be reversed, the plaintiffs contend that upon the findings they are entitled to a decree. The substantive issues raised by the pleadings, whether through the fraud and undue influence of the defendant, Joseph M. Kellogg, practiced upon the plaintiff, James Crosier, the deed was procured in the form in which it was delivered, and whether at the time of its execution James Crosier had sufficient mental capacity to make the conveyance, were questions of fact. Woodbury v. Woodbury, 141 Mass. 329, 5 N.E. 275, 55 Am. Rep. 479; Reed v. Mattapan Deposit & Trust Co., 198 Mass. 306, 314, 84 N.E. 469. If the advanced age of the plaintiffs, and the confidence reposed by them in the principal defendant, were important facts for the consideration of the master, we cannot say, upon his recital of the circumstances which led to the execution and delivery of the deed conveying their homestead upon a meritorious consideration, with the reservation of a life estate for their joint lives, that his conclusion, that the essential allegations of the bill as amended had not been established, was plainly wrong.

Decree affirmed.