Hiller v. Hiller

• Decision Date: 01 February 1940
• Parties: HILLER et al. v. HILLER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

305 Mass. 163

25 N.E.2d 163

HILLER et al.

v.HILLER et al.

Supreme Judicial Court of Massachusetts, Plymouth.

Feb. 1, 1940.

Suit by Charles E. Hiller and others against Joseph L. Hiller and another to establish a trust. From an adverse decree, defendants appeal.

Decree modified and, as modified, affirmed.Appeal from Superior Court, Plymouth County; T. J. Hammond, Judge.

G. A. Verde, of Boston, for plaintiff.

S. Rosenberg, of Boston, for defendant.

QUA, Justice.

The plaintiffs and the defendant Joseph L. Hiller are cousins and are the heirs at law of their uncle, Lilburne Hiller, late of Mattapoisett, deceased intestate. By the amended bill the plaintiffs seek to establish a trust, arising originally for the benefit of Lilburne Hiller and now existing for the benefit of his heirs, in certain parcels of real estate conveyed by Lilburne in his lifetime to Joseph L. Hiller by deeds in which no trust was expressed. After a full hearing, at which many witnesses testified orally, the judge found that the conveyances were not made as gifts to Joseph L. Hiller; that they were not made in payment of any indebtedness or for services rendered; that they were without consideration; and that they were made ‘for the convenience of Lilburne Hiller.’ He entered a final decree ordering the defendants to convey to the plaintiffs seven undivided eighths of the real estate. The defendants appealed.

The statute of frauds, G.L.[Ter.Ed.] c. 203, § 1, has not been pleaded, and no question arising out of that statute has been raised or argued. See Southwick v. Spevak, 252 Mass. 354, 357, 147 N.E. 885;Stoneham Five Cents Savings Bank v. Johnson, 295 Mass. 390, 393, 394, 3 N.E.2d 730,103 A.L.R. 1333, and cases cited.

The alleged errors of which the defendants complain are principally in the making of findings of fact which the defendants contend are wrong. The defendants in their brief have properly treated the questions presented as questions of fact. The evidence is reported. It has been held repeatedly that in an equity or probate appeal, where the evidence is reported, it is the duty of this court to examine the evidence and to decide the case upon its own judgment, but that findings of fact made by the trial judge upon oral testimony will not be reversed unless they are plainly wrong. Weight is to be given to the finding of the judge, who had the advantage of seeing and hearing the witnesses, and who was in a position to judge of their credibility. Comstock v. Bowles, 295 Mass. 250, 253, 254, 3 N.E.2d 817;Markiewicus v. Town of Methuen, Mass., 16 N.E.2d 32;Exchange Realty Co. v. Bines, Mass., 18 N.E.2d 425.

Nothing would be gained by a lengthy discussion of the detailed findings of fact made by the trial judge....