Kobrosky v. Crystal

• Decision Date: 04 April 1955
• Citation: 332 Mass. 452,125 N.E.2d 385
• Parties: Milton L. KOBROSKY, administrator, v. Anne S. CRYSTAL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 385

125 N.E.2d 385

332 Mass. 452

Milton L. KOBROSKY, administrator, v. Anne S. CRYSTAL.

Supreme Judicial Court of Massachusetts, Hampden.

Argued Dec. 8, 1954.

Decided April 4, 1955.

Abraham I. Smith, Springfield, for petitioner.

Raymond T. King, Springfield (Frederick M. Kingsbury, Springfield, and Richard S. Milstein, Westfield, with him), for respondent.

Before QUA, C. J., and RONAN, WILKINS and WILLIAMS, JJ.

WILKINS, Justice.

This petition in equity was brought originally by Sarah Kobrosky whose son, Milton L. Kobrosky, was her conservator. Sarah died on October 20, 1954, and Milton, as special administrator of her estate, has been made the petitioner by amendment allowed by the full court. The original respondents were Anne B. Crystal, a daughter of Sarah; Maurice Crystal, her husband; Irving Miller, her cousin; and four banking institutions in Springfield and West Springfield. From a decree hereinafter described, Anne and Miller appealed. ¹

The petition seeks to recover from Anne personal property, tangible and intangible, which, now that the case has been heard, seems to concern $47,000 in cash; bonds of the State of Israel in the face amount of $40,500; savings bonds of the United States of America in the face amount of $7,775; a coin collection; the proceeds of accounts in the Springfield Institution for Savings and West Springfield Trust Company in the respective amounts of $5,228.46 and $1,952.42; and a mortgage on real estate on Sharon Street, Springfield, in the names of Sarah, Anne, and Louis Kobrosky. An allegation of the petition is that 'all these assets represent accumulations by her [Sarah] over a period of fifty years.' There is also a prayer to set aside conveyances by Anne to Miller of her interest in certain real estate, and her transfer to him of eleven shares of capital stock in Samuel Kobrosky & Co., Inc., as made in fraud of creditors.

The decree declared that Sarah 'had the right to possession' of the $47,000 in cash, the State of Israel bonds, and the coin collection, and that they were wrongfully taken by Anne. The decree ordered Anne to 'return and deliver' to Sarah the cash (plus $2,693 interest) and bonds, and to 'deliver' the coin collection to Sarah. Other provisions of the decree were that Sarah is the sole owner of the United States savings bonds, that Anne wrongfully has possession, and that she should 'return and deliver' them to Sarah; that Sarah was the sole owner of the accounts in the Springfield Institution for Savings and in the West Springfield Trust Company, that Anne wrongfully withdrew the money in these accounts, and that Anne is indebted to Sarah for the amounts of $5,228.46 and $1,000, and is ordered to pay these amounts (plus interest of $235.26 and $46) to Sarah; that Anne holds the Sharon Street mortgage in trust for Sarah, and is ordered to assign all her right, title and interest therein to Sarah; and that the real estate and capital stock were transferred by Anne to Miller in fraud of creditors, and are to be sold if Anne does not pay Sarah the sum of $56,202.72 and interest. No relief was granted against Maurice Crystal or the banking institutions, but the petition was not expressly dismissed as to them.

1. Counsel for Anne argue that there was a failure of the judge within a reasonable time to make a report of the material facts found by him, and that such failure requires that the petition be dismissed. Pertinent dates, all in 1953, are: entry of decree, March 2; request for report of material facts, March 6; appeal, March 20; order to furnish transcript of evidence, March 24; exceptions to failure to make report of material facts, December 17; and report of material facts, December 24. Anne was confined in the county jail on a writ ne exeat regno from January 29 to March 2, and on a commitment for contempt from the latter date until December 15. See Petition of Crystal, 330 Mass. 583, 116 N.E.2d 255. That undue delay is a reproach to the administration of justice is not to be gainsaid. Some delay here was undoubtedly brought about by awaiting the transcribing of the testimony, as we read in her brief that the transcript of the evidence was not delivered to the Probate Court until September 1, 1953. ² However that may be, we find nothing in the statutes which, in the event of unreasonable delay in the judicial process, confers a gratuity upon the appellant when a respondent, or visits a penalty of dismissal of the suit upon the equally unoffending petitioner when an appellee.

The pertinent statute is G.L. (Ter.Ed.) c. 215, § 11, as amended by St.1947, c. 365, § 3, which reads: 'The [probate] judge by whom an order, decree or denial was made shall report the material facts found by him, on request of any party entitled to appeal therefrom made within ten days after such party has notice of such order, decree or denial * * *.' The corresponding statute relating to the Supreme Judicial Court and to the Superior Court reads somewhat differently: 'The justice of either court by whom a decree was made, if a written request by any party entitled to appeal therefrom is filed in the office of the clerk of such court within ten days after such party has been notified of the entry of the decree, shall report the material facts found by him within thirty days after the filing of the request as aforesaid or within such further time as the chief justice of such court may grant, upon written request by such justice within said thirty day period * * *.' G.L.(Ter.Ed.) c. 214, § 23, as appearing in St.1947, c. 365, § 2.

In Fields v. Paraskis, 318 Mass. 726, 727, 63 N.E.2d 906, it was said that a refusal by a judge to perform his statutory duty under G.L. (Ter.Ed.) c. 214, § 23, might give ground for an exception although there was no remedy by appeal, but there was no intimation that prosecution of the exception might lead to a denial of equitable relief to a plaintiff or a petitioner who had prevailed at the hearing.

2. The Probate Court had jurisdiction of the petition under G.L. (Ter.Ed.) c. 215, § 6, as appearing in St.1937, c. 257, as amended by St.1939, c. 194, § 2, which confers jurisdiction 'of all matters relative to guardianship and conservatorship'. This means all matters cognizable under the general principles of equity jurisprudence relative to the estates of the wards. Kressler v. Flynn, 323 Mass. 610, 614, 83 N.E.2d 876. The extent of jurisdiction is analogous to that conferred by c. 215, § 6, as to the administration of the estate of a deceased person. 'Recovery of property that is a part of an estate presents an issue under this statute. Mitchell v. Weaver, 242 Mass. 331, 337, 136 N.E. 166. See Coffey v. Rady, 267 Mass. 301, 166 N.E. 833.' Hinckley v. Town of Barnstable, 311 Mass. 600, 606, 42 N.E.2d 581, 585. It is further settled that jurisdiction extends to the recovery of money itself and is not confined to stocks, bonds, savings bank books, or unique chattels. Allen v. Moushegian, 320 Mass. 746, 754, 71 N.E.2d 393.

3. The judge's report of the material facts found by him is expressly made under G.L. (Ter.Ed.) c. 215, § 11, as amended. These we summarize. Sarah was the widow of Samuel Kobrosky, who died on December 20, 1947, survived by four daughters, of whom Anne was unmarried and living at home, and two sons, Louis and Milton. Samuel had successfully engaged in the junk business in Springfield for about fifty years, at first individually and later for a corporation. He accumulated large sums of money which he placed in a safe in a closet of his bedroom at home.

(a) In October, 1949, Sarah received a check for $4,720 in partial distribution from her husband's estate. From this check an initial deposit of $4,000 was made in the Springfield Institution for Savings in the name of Sarah Kobrosky or Anne B. Kobrosky. Later three deposits totaling $1,000 were made, and with interest accumulations the account reached $5,228.46. 'All of this money was the property of Sarah.' Anne never deposited any money of her own in this account. Her name was on the book for the purpose of making deposits and withdrawals for her mother. Shortly after May 19, 1952, she received a check of the bank for the full amount of the account, and later indorsed it to Miller, who knew it was not Anne's money. Sarah knew nothing of the transaction.

(b) A mortgage in the amount of $15,500 on real estate on Sharon Street stood in the names of Sarah, Anne, and Louis, as joint tenants with right of survivorship. On July 28, 1951, a savings account in their names was opened at the West Springfield Trust Company. The mortgage and the account were the property of Sarah, the other names being used for convenience in handling payments on account of the mortgage. On January 28, 1952, without the knowledge of Sarah or Louis, Anne withdrew the funds in this savings account, and opened a checking account in the same bank in her mother's name and her own. On May 13, 1952, without authority from her mother she withdrew the balance of the checking account, amounting to $1,952.42.

(c) Samuel had three safes, two at his junk yard, and one in the closet of the bedroom of Sarah and himself. He alone knew the combination of the bedroom safe. He tried to teach Sarah the combination, but she was unable to learn it. He told her that he was saving money for her, and that there was $10,000 for each of the six children. She testified to an amount of $125,000 he told her he was saving for her. 'He told her that this money was hers.' After Samuel's death the bedroom safe was opened by an expert in the presence of Anne, Louis, and two other sisters. Among other things in the safe were a bag containing old coins, three bags containing $60,000 in bills, jewelry of Sarah, and a small envelope bearing the name of Sarah and containing a key, which 'was discovered' to belong to one of the safes at the junk yard. When the key was found, Louis said, 'That's the key to the safe in the...