Markell v. Sidney B. Pfeifer Foundation, Inc.

CourtAppeals Court of Massachusetts
Writing for the CourtARMSTRONG
Citation402 N.E.2d 76,9 Mass.App.Ct. 412
Decision Date29 May 1980

George A. McLaughlin, Jr., Boston (John S. Leonard, Boston, with him), for plaintiff.

Norman S. Weinberg, Boston, and Dwight L. Allison, Belmont, for Kate Lewis and Freda Assner, submitted a brief.



This action was commenced by Minnie G. Hey on December 19, 1967, three days before her death, and was continued by the present plaintiff, who is the executor named in her will and the principal beneficiary thereunder. The purpose of the action was to obtain a judicial determination that she had the power to revoke a scheme for the distribution of certain of her property (substantially all, apparently, of her intangible personal property, amounting to approximately $700,000 in value at the time of her death) set out in a trust declaration which she had executed on October 24, 1966. The trust instrument, as then executed, provided that the income should go to her for life and then to her nephew, Sidney B. Pfeifer, for life (he died, however, on June 4, 1967, six months before Minnie Hey), and, at the death of the survivor, the trust assets should go to the defendant foundation outright. Her complaint sought either of two forms of relief, in the alternative. The first was a determination that her assent to the declaration of trust (as well as to a predecessor declaration of trust in the Pfeifer's favor executed on February 25, 1960) had been obtained as a result of fraud, mistake, or undue influence and that the trust was therefore void; the second was a determination that the trust reserved to her a power to amend the scheme of distribution under the trust and that she had validly exercised that power by instruments executed on August 29, 1967, and November 14, 1967. The schemes of distribution set out in those instruments were mirrored in wills executed the same days as the trust amendment instruments, so as to have the trust assets distributed identically, principally to Minnie Hey's friends and their families, 1 whether they should pass under the will or under the trust as amended. The sole beneficiary under the 1966 trust as unamended would be the defendant foundation.

The trial judge entered findings and rulings to the effect that Minnie Hey was induced by Sidney Pfeifer to execute the trust without full comprehension of its nature and legal effect, that the trust was therefore void, and that, in any event, the amendments of August 29 and November 14, 1967, were executed in accordance with the terms of the trust and were therefore valid.

The case is here on the foundation's appeal from the ensuing judgment declaring the trust to be void and the assets thereof to be a part of Minnie Hey's estate and

denying the foundation's motion for the payment of its counsel fees from the estate.


Before reaching the question of the propriety of the judge's disposition of the case on the merits, we encounter a preliminary procedural contention by the defendant foundation concerning the weight to be given the findings of fact entered by the judge. The contention is that the judge failed to discharge the duty of making findings based on the evidence as she viewed it and instead mechanically adopted findings of fact prepared by counsel for the plaintiff. Such findings, the defendant argues, are entitled to be given no weight on appeal; rather, as the case is before us on full report of the evidence, we should examine the evidence and make our own findings and draw our own conclusions therefrom, independent of those adopted by the judge.

The point is one which, so far as we have discovered, has been alluded to only briefly in our cases, 2 but it has been extensively discussed in numerous Federal cases; and, because our present rules of civil procedure (which applied to the findings in this case 3) are patterned on Federal practice, those Federal cases are helpful, if not binding, precedent in determining the legal soundness of the defendant's contention. Rollins Environmental Servs., Inc. v. Superior Court, 368 Mass. 174, 179-180, 330 N.E.2d 814 (1975); Westinghouse Elec. Supply Co. v. Healy Corp., 5 Mass.App. ---, --- - --- a, 359 N.E.2d 634 (1977), and cases cited.

Rule 52(a), 365 Mass. 816 (1974), like its Federal counterpart, provides that "(i)n all actions tried upon the facts without a jury, the court shall find the facts specially . . . . Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." "The purpose of that rule is to require the trial judge to formulate and articulate his findings of fact and conclusions of law in the course of his consideration and determination of the case and as a part of his decision making process, so that he himself may be satisfied that he has dealt fully and properly with all the issues in the case before he decides it and so that the parties involved and this court on appeal may be fully informed as to the bases of his decision when it is made. Findings and conclusions prepared ex post facto by counsel, even though signed by the judge, do not serve adequately the function contemplated by the rule." Roberts v. Ross, 344 F.2d 747, 751-752 (3rd Cir. 1965).

It has been said that "(a)s an ideal matter, it would be desirable for the trial judge to draft his own findings in every case. This would supply insurance, for the benefit of the appellate court, that the trial judge did indeed consider all the factual questions thoroughly and would guarantee that each word in the finding is impartially chosen." Louis Drefus & Cie. v. Panama Canal Co., 298 F.2d 733, 738 (5th Cir. 1962). "The The Federal appellate courts have not, however, insisted on the ideal. They have instead taken the practical view that "(i)n the workaday world . . . it may often be necessary for a hard-pressed district court to take assistance from counsel in articulating his decision;" and "(n)umerous cases have approved the practice of adoption by the trial judge of findings submitted by counsel for the prevailing party and have held that such findings are entitled to the same weight as they would receive if drafted by the judge himself." Louis Dreyfus & Cie. v. Panama Canal Co., supra at 737 and 738 (where cases from five circuits are cited approving the latter proposition). The Supreme Court has held that "findings, though not the product of the workings of the district judge's mind, are formally his; they are not to be rejected out-of-hand, and they will stand if supported by evidence." United States v. El Paso Natural Gas Co., 376 U.S. 651, 656, 84 S.Ct. 1044, 1047, 12 L.Ed.2d 12 (1964). To the same effect, see United States v. Crescent Amusement Co., 323 U.S. 173, 184-185, 65 S.Ct. 254, 259-260, 89 L.Ed. 160 (1944); O'Leary v. Liggett Drug Co., 150 F.2d 656, 667 (6th Cir.), cert. denied, 326 U.S. 773, 66 S.Ct. 232, 90 L.Ed. 467 (1945); Volkswagen of America, Inc. v. Jahre, 472 F.2d 557, 559 (5th Cir. 1973); George W. Bennett Bryson & Co. v. Norton Lilly & Co., 502 F.2d 1045, 1049 n.17 (5th Cir. 1974); Keystone Plastics, Inc. v. C & P Plastics, Inc., 506 F.2d 960, 962-963 (5th Cir. 1975); Schwerman Trucking Co. v. Gartland S. S. Co., 496 F.2d 466, 474-475 (7th Cir. 1974); Bradley v. Maryland Cas. Co., 382 F.2d 415, 423 (8th Cir. 1967 (Blackmun, J.)); Nissho-Iwai Co. v. Star Bulk Shipping Co., 503 F.2d 596, 598 (9th Cir. 1974). A few cases suggest that the practice of adopting verbatim findings prepared by counsel is best restricted to cases turning on scientific or technical facts, as do many patent and some antitrust cases (see e. g., Louis Dreyfus & Cie. v. Panama Canal Co., 298 F.2d at 737; In re Las Colinas, Inc., 426 F.2d at 1009; Reese v. Elkhart Welding and Boiler Works, Inc., 447 F.2d 517, 520 (7th Cir. 1971)); but the foundation's contention that adopted findings are to be disregarded in other types of cases is belied by scores of decisions, including some of those cited by the foundation, which observe no such rule.

independence of the court's thought process may be cast in doubt when the findings proposed by one of the parties wind up as the court's opinion and the courts have not looked with favor upon the practice." In re Las Colinas, Inc., 426 F.2d 1005, 1009 (1st Cir. 1970).

That the judge's findings were taken principally (although, as will be seen, not entirely) from those prepared by plaintiff's counsel does not make the "clearly erroneous" standard of rule 52(a) inapplicable. On the other hand, that standard is not one of exact or mechanical precision: It involves a measure of judgment or discretion by appellate courts in its application, 4 and there are necessarily cases in which the correctness of findings of fact viewed against the whole record presents a close question for decision. In such cases, an appellate court is likely to accord the findings entered by the trial judge greater weight if he prepared them himself or if he has so reworked a submission by counsel that it is clear that the findings are the product of his independent judgment. In re Las Colinas, Inc., 426 F.2d at 1010. Tanker Hygrade No. 24 v. The Dynamic, 213 F.2d 453, 456 (2nd Cir. 1954); Roberts v. Ross, 344 F.2d at 752; The Severance, 152 F.2d 916, 918 (4th Cir.), cert. denied, sub nom. Stone v. Diamond S. S. Transp. Co., 328 U.S. 853, 66 S.Ct. 1344, 90 L.Ed. 1626 (1945); Louis Dreyfus & Cie. v. Panama Canal Co., 298 F.2d at 736-738. 9 Wright & Miller, Federal Practice and Procedure § 2578 at 707 (1971).

In the Louis Dreyfus & Cie. case,...

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