Harding v. Studley

• Decision Date: 01 April 1936
• Citation: 294 Mass. 193,200 N.E. 916
• Parties: HARDING v. STUDLEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

294 Mass. 193

200 N.E. 916

HARDING

v.STUDLEY.

Supreme Judicial Court of Massachusetts, Barnstable.

April 1, 1936.

Petition by Edward M. Harding for an order adjudging a bond held by Florence A. Studley, executrix of the will of Lucy Maude Cousins Harding, to be the property of the estate of Lucy Maude Cousins Harding and not the property of the executrix. Decree for the petitioner, and the executrix appeals.

Affirmed.

Appeal from Probate Court, Barnstable County; Leggat, Judge.

P. M. Swift, of Hyannis, for appellant.

J. T. Batchelder, of Boston, and J. D. W. Bodfish, of Hyannis, for appellee.

FIELD, Justice.

Lucy Maude Cousins Harding died September 13, 1933, leaving a will executed September 1, 1932, which was duly allowed. By this will she made bequests to her sister Florence A. Studley including a specific bequest of a ‘Title Guarantee Trust Co. Bond,’ and named her sister as executrix. Mrs. Studley qualified as executrix. The surviving husband of the testatrix, Edward M. Harding, waived the provisions of the will.

Edward M. Harding brought this petition in equity in the probate court against Florence A. Studley. It contains a prayer, among others, that the court ‘determine whether or not this estate includes said bond for five thousand dollars described in said will of the testatrix.’ A hearing thereon was had in the probate court and a decree entered which was reversed by this court on appeal. Harding v. Studley (Mass.) 195 N.E. 105. At the same time a decree on another petition removing Florence A. Studley as executrix was affirmed.

After the decree on the present petition was reversed another hearing was had thereon on the single issue whether the bond is property of the estate of the testatrix, and a decree was entered that such bond ‘together with accrued interest thereon since the date of death of said Luch Maude Cousins Harding, is the property of said estate.’ Florence A. Studley appealed to this court. The case comes before us with a report of all the evidence and a report by the judge of the material facts.

The decree appealed from must be affirmed.

The petition was treated by the judge as brought under G.L.(Ter.Ed.) c. 230, § 5, as amended by St.1934, c. 116, and no contention is made that it is not within that statute.

On this appeal, with the evidence reported, this court reviews facts as well as law and, since the evidence is largely oral, the findings of the trial judge will not be reversed unless plainly wrong. He saw the witnesses and was in a more favorable position than are we, with only the transcript of the evidence before us, to pass upon their credibility and the weight to be given to their testimony. Reed v. Reed, 114 Mass. 372;Lindsey v. Bird, 193 Mass. 200, 79 N.E. 263;Malden Trust Co. v. Brooks (Mass.) 197 N.E. 100.

Clearly, apart from the direct testimony of Mrs. Studley, her husband and her son, that the testatrix made a gift of the bond in question to her in January, 1933, a finding that this bond was the property of the estate of the testatrix at the time of her death was not plainly wrong. Indeed no such contention is made. The case turns, therefore, upon the effect to be given to such direct testimony. With reference to this testimony the judge in his report of material facts makes this statement: ‘If believed, this testimony established a good and valid gift. I did not believe her [Mrs. Studley's] testimony. Her evasive conduct on the witness stand, her inability to set a definite date, within a reasonable time, of the day of a gift of five thousand dollars, her lack of frankness in answering relevant questions, her denial of knowledge of the bond in question at a previous hearing on his matter and on the morning after the testatrix's death, her acknowledgment of a gift of a one...