Harris v. Harris

Decision Date01 April 1891
PartiesHARRIS et al. v. HARRIS.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
COUNSEL

G.C Abbott and J.D. Ball, for appellants.

Northend & Benjamin, for appellee.

OPINION

KNOWLTON J.

The first question in this case is whether, at the hearing in this court, the appellee may attack that part of the decision of the probate court which held that the addition to the shoe factory was personal property. It has often been decided that on the trial of a probate appeal the appellant is restricted to the matters stated in the reasons of appeal filed in the case, in accordance with the requirements of Pub.St. c. 156 § 8, which was repealed by St.1888, c. 290. Boynton v Dyer, 18 Pick. 4; Murphy v. Walker, 131 Mass. 344. While an appeal of this kind vacates the decree, and the case is to be tried anew in this court, the method of trial under the former statute, which required the filing of reasons of appeal, differed from that of an appeal from a court of common law. The appellant was restricted to such points as were specified in his reasons of appeal, because those were the only subjects which the adverse party had been notified to be prepared to investigate. Everything else, not having been objected to, was deemed to have been impliedly assented to, and was presumed to be correct. The reason of this rule does not apply to limit the rights of an appellee in a case where the appellant seeks to modify the decision of the probate court upon a part of a subject by appealing, and alleging as a reason of the appeal that there is error in one of two propositions which together make up the decision, and by relying on the other proposition as a foundation for a more favorable decision upon the first. In such a case, while the appellant would be limited, in the first instance, to the points stated in his reasons of appeal, he would open to the appellee every question which was involved in the decree upon that subject. Where a controversy is whether an executor is chargeable for a certain thing as personal property, it would be unjust to the appellee to permit the appellant to attack the decree on the ground that the executor was not charged for the full value of the property, and not to permit the appellee to answer that he ought not to have been charged for it at all. The appeal in this case was taken before the repeal of Pub.St. c. 156, § 8, and we are therefore called upon to consider whether the addition to the factory was real estate or personal property.

The master has found "as a fact that the whole building was a permanent fixture on said lot of land and was a part of the real estate, the legal title thereof being in Joseph Harris; and that whatever claim the firm of Joseph Harris & Sons had by reason of the erection of the addition was an equitable interest in the real estate." This finding must control the case, if it can be supported on the evidence. It is a familiar rule that where there is an agreement, express or implied, between the owner of real estate and the proprietor of materials or buildings which are about to be put upon it, that when annexed to the realty they shall remain the property of the...

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21 cases
  • Troll v. City of St. Louis
    • United States
    • Missouri Supreme Court
    • 4 May 1914
    ...the equitable title with survivorship is in the firm. Riddle v. Whitehall, 136 U. S. 621, 10 Sup. Ct. 924, 34 L. Ed. 282; Harris v. Horne, 153 Mass. 439, 26 N. E. 1117; Paige v. Paige, 71 Iowa, 318, 32 N. W. 360, 60 Am. Rep. The author last quoted again says: "When in the deed the firm styl......
  • Troll v. City of St. Louis
    • United States
    • Missouri Supreme Court
    • 4 May 1914
    ... ... the firm. [ Riddle v. Whitehill, 135 U.S. 621, 34 ... L.Ed. 282, 10 S.Ct. 924; Harris v. Harris, 153 Mass ... 439, 26 N.E. 1117; Paige v. Paige, 71 Iowa 318, 32 ... N.W. 360.] The author last quoted again says: "When in ... the ... ...
  • Creed v. McAller (In re Connelly's Estate
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 27 April 1931
    ...far as those interests are necessarily involved in the determination of the issues before the court. G. L. c. 215, § 28, Harris v. Harris, 153 Mass. 439, 26 N. E. 1117;Swift v. Crocker, 262 Mass. 321, 159 N. E. 919. There was a slight gain in the sale of the group of copper mining stocks ov......
  • Sunter v. Sunter
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 12 January 1910
    ... ... open to him to complain of this error on the plaintiffs' ... appeal. See in this connection May v. Gates, 137 ... Mass. 389; Harris v. Harris, 153 Mass. 439, 26 N.E ... 1117: [90 N.E. 563] Moors v. Washburn, 159 Mass ... 172, 34 N.E. 182; Shaughnessey v. Leary, 162 Mass ... ...
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