Epstein v. Epstein

• Decision Date: 28 June 1934
• Citation: 287 Mass. 248
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: ABRAHAM EPSTEIN v. ANNIE EPSTEIN & others.

287 Mass. 248

ABRAHAM EPSTEIN v. ANNIE EPSTEIN & others.

Supreme Judicial Court of Massachusetts, Bristol.

June 28, 1934

April 5, 1934.

Present: RUGG, C.

J., PIERCE, FIELD DONAHUE, & LUMMUS, JJ.

Trust, Resulting. Equity Pleading and Practice, Master: report, recommittal. Limitations, Statute of.

A master, to whom was referred a suit in equity by a son against the widow and other heirs of his father, seeking to have conveyed to the plaintiff an interest in certain real estate held by the father at the time of his death as a tenant in common with the plaintiff, found that in the father's lifetime the plaintiff had negotiated for the purchase of the real estate that he contributed a part of the purchase price, his father a part, and other members of the family a balance which had been repaid; that a mortgage, which was a part of the transaction, was signed by the plaintiff and his wife; that by the plaintiff's direction the title was taken in the name of his wife, who acted solely at his direction; that two years later his wife, at his direction, conveyed the property to him and his father as tenants in common to increase the credit of the plaintiff at certain banks; that the father did not have and did not claim any beneficial interest in the real estate; and that the father had held title to an undivided one-half interest for the use and benefit and under the direction of the plaintiff. A final decree was entered granting the plaintiff the relief sought. The defendants appealed. Held, that

(1) No resulting trust arose in favor of the father at the time of the purchase of the property, and nothing done afterwards could create one;

(2) The plaintiff's wife held title originally subject to a resulting trust for the plaintiff, and, when she conveyed to the plaintiff and his father as tenants in common, the father held title as trustee in succession to her;

(3) The decree for the plaintiff was proper.

A suit in equity was referred to a master under a rule directing him to report his findings "together with such questions of law arising in the course of his duty, as any party may request." The defendant filed with the master objections which related only to findings of fact by the master; and also filed with the master a request in writing "that the master append to his report a brief, accurate and fair summary of so much of the evidence as is necessary to enable the court to determine the questions of law arising with regard to the validity of the objections." The master annexed both the objections and the request to his report. He did not comply with the request. After the report was filed, the defendant moved that it "be recommitted to the master for further findings and for a brief, accurate and fair summary of so much of the evidence as is necessary to enable the court to determine the questions of law arising with regard to the validity of the objections filed by" him. No affidavit of facts under Rule 46 of the Superior Court

(1932) was filed. The motion to recommit was denied. There were entered an interlocutory decree overruling the defendant's exceptions and confirming the report of the master and a final decree granting relief to the plaintiff. The defendant appealed from both decrees but not from the denial of his motion to recommit. In this court he argued that Rule

90 of the Superior Court (1932) required the granting by the master of his request respecting a report of the evidence. Held, that in the circumstances no error of law was shown in the confirming of the master's report notwithstanding the failure of the master to comply with the request of the defendant respecting the evidence.

Whether, or how far, findings of fact made by a master shall be subject to analysis by recommitting the case to him with directions to report subsidiary facts or evidence by which the correctness of his findings in point of fact may be tested, is discretionary with the court that appointed him. Per LUMMUS J.

It appearing in the suit in equity above described that there was no repudiation of the father's trust until after his death, and that the suit was brought in the same year, the statute of limitations was not a bar.

BILL IN EQUITY, filed in the Superior Court on November 28, 1931. The suit was referred to a master under a rule which directed him "to hear the parties, find the facts, and report his findings to the court, together with such questions of law, arising in the course of his duty, as any party may request." Material facts found by the master are stated in the opinion. The defendants filed with the master both objections to the report and a request in writing "that the master append to his report a brief, accurate and fair summary of so much of the evidence as is necessary to enable the court to determine the questions of law arising with regard to the validity of the objections." The master did not comply with the request.

After the master's report was filed, the defendants moved that it "be recommitted to the master for further findings and for a brief, accurate and fair summary of so much of the evidence as is necessary to enable the court to determine the questions of law arising with regard to the validity of the objections filed by them."

The suit was heard by Hanify, J. He denied the motion, and by his order there were entered an interlocutory decree overruling the defendants' exceptions to the master's report and confirming the report, and a final decree granting to the plaintiff the relief which he sought. The defendants appealed from the interlocutory and the final decrees only.

Among other contentions urged by them in this court, the defendants argued that they were "entitled to a compliance with" Rule 90 of the Superior Court (1932).

Rules 46 and 90 of the Superior Court (1932) read as follows: Rule 46. "A motion must be in writing and filed before being placed upon a list for hearing, unless otherwise ordered by the court.

"The court need not hear any motion, or opposition thereto, grounded on facts, unless the facts are verified by affidavit, or are apparent upon the record and files, or are agreed and stated in writing signed by the attorneys for the parties interested.

"The court may require the filing of a brief, in such form and within such time as it may direct, as a condition precedent to being heard on a motion or interlocutory matter, or on the entry of judgment or decree upon an auditor's or master's report."

Rule 90. "When the master has prepared a draft copy of his report, he shall furnish the parties with copies thereof and notify them of a time and place when and where they may attend and suggest such alterations as they may think proper; upon consideration whereof, the master shall finally settle the draft of his report, and give notice thereof to the parties, furnishing them with copies of the report in so far as it differs from the draft report; whereupon ten days shall be allowed for bringing in written objections thereto, briefly and clearly specifying the matters objected to and the cause thereof, which objections shall be appended to the report.

"Unless the court expressly orders otherwise, whenever any objection presented to the master raises a question of law which depends upon evidence not reported, the master upon written request presented with the objection, shall append to his report, for the sole purpose of enabling the court to determine such question of law, a brief, accurate and fair summary of so much of the evidence as shall be necessary for such purpose. But where the objection raises the question whether the evidence was sufficient in law to support a finding of fact made by the master, no such summary shall be made without special order of the court, unless (1) the evidence shall have been taken by a stenographer selected or approved by the master before any evidence was introduced and (2) the objecting party shall at his expense furnish the master, within the...