Lindsey v. Bird

• Decision Date: 27 November 1906
• Citation: Lindsey v. Bird, 193 Mass. 200, 79 N.E. 263 (Mass. 1906)
• Parties: LINDSEY v. BIRD.
• Court: Supreme Judicial Court of Massachusetts

193 Mass. 200

79 N.E. 263

LINDSEY v. BIRD.

Supreme Judicial Court of Massachusetts, Bristol.

November 27, 1906

COUNSEL

Geo F. Williams, for appellant.

Jennings Morton & Brayton, for appellee.

OPINION

RUGG J.

This is a bill in equity, brought by the administratrix of the estate, who is also the widow, of Henry Lindsey, to recover from the defendant certain moneys collected by him on the order of said Lindsey during his life; this property being practically all which the deceased possessed. The justice of the superior court who heard the cause filed a certain 'memorandum of findings,' which is a brief extract of certain material evidence and a statement of his findings of fact. This was made voluntarily without the request of either party. Such memorandum is a part of the record and has the same effect as a report made under Rev Laws, c. 159, § 23. Cohen v. Nagle, 190 Mass. 4, 76 N.E. 276, 2 L. R. A. (N. S.) 964. The voluminous oral testimony given before the trial court was reported by a commissioner and forms a part of the record. Certain documentary evidence is not printed, and many letters from the plaintiff's intestate to the defendant, the contents of which are not stated, were introduced in evidence, but do not form a part of the record. In the superior court a decree was entered dismissing the bill and ordering the plaintiff to pay the defendant her taxable costs and the defendant to take no costs. The plaintiff appealed from this decree.

In Colbert v. Moore, 185 Mass. 227, 70 N.E. 42, the court speaking through Lathrop, J., said: 'The appeal brings before the court questions of fact as well as questions of law, and it is the duty of the court to examine the evidence, and to decide the case according to its judgment, giving due weight to the finding of the judge. * * * It is however true that upon an appeal from a decree of a judge in equity upon questions of fact, arising on oral testimony heard before him, his decision will not be reversed unless it is plainly wrong.'

It was admitted that the defendant had received $6,173.70 belonging to the plaintiff's intestate upon his order from the estate of one Maria M. Lindsey, and that the defendant had properly paid out $2,006.02 from this fund on Lindsey's account. The plaintiff claimed that the transfer of this money by her intestate to the defendant was void because of lack of mental capacity in the deceased, and of undue influence exerted upon him by the defendant, and that the...