McCarthy v. Fitzgerald
| Decision Date | 03 December 1936 |
| Citation | 5 N.E.2d 36,296 Mass. 181 |
| Parties | McCARTHY et al. v. FITZGERALD. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Suit by Nellie C. McCarthy and another, as executrices of the will of Fannie Fitzgerald, against Mary Fitzgerald. From a decree for plaintiffs, defendant appeals.
Affirmed.
Appeal from Superior Court, Ploymouth County; Sheehan, Judge. O. V Fortier, of Brockton, for plaintiffs.
J. A Reilly, of Brockton, for defendant.
The plaintiffs, as executrices of the will of Fannie Fitzgerald, seek by this suit in equity to compel the defendant to transfer to them certain securities, alleged to be the property of the estate of the testatrix.
The answer of the defendant is improper in form. It consists simply of general denials of the allegations of the bill, except that two paragraphs as to formal matters were admitted. This is not in conformity to Rule 29 of the Superior Court (1932). Burke v. McLaughlin, 246 Mass. 533, 537, 538, 141 N.E. 601. No objection appears to have been made to the answer. The case has been fully heard. It will be considered as if there had been a proper joinder of issues. Volpe v. Sensatini, 249 Mass. 132, 134, 144 N.E. 104.
The case was referred to a master, whose report contains a full recital of the facts found. The evidence is not reported. Therefore, the findings of fact made by the master must be accepted as true, since they are not inconsistent or plainly wrong. O'Brien v. Gove, 208 Mass. 325, 94 N.E. 271; Glover v. Waltham Laundry Co., 235 Mass. 330, 334, 127 N.E. 420.
The facts pertinent to the grounds of this decision are these The testatrix was an alert and intelligent business woman of varied training and experience. Early in 1933, she suffered a shock, which materially affected her speech and powers of locomotion. In March, 1933, she went to live with the defendant, who was the widow of a deceased brother of the testatrix. The testatrix executed a will, which has been duly proved and allowed, wherein legacies and articles of a personal nature were left to friends. The defendant was left $2,000 to be paid out of earnings of real estate in Canada, and, if that real estate was sold, the proceeds were to be used in paying this legacy. In March, 1933, the testatrix executed a note in the sum of $390, payable in three months to the Brockton Savings Bank. Certain stocks of the testatrix, having a market value of about $1,800, were pledged as collateral for this note, which was in the usual form and which provided that the market value of the securities should at all times be twenty-five per cent more than the amount of the note. While the testatrix was living with the defendant, she became apprehensive concerning this note, because she had no cash with which to pay it at maturity. After discussing the matter with the defendant, the services of an attorney of experience and standing were sought. An instrument under seal with recital of a consideration was thereupon executed by the testatrix and the defendant purporting to transfer to the defendant all the right, title and interest of the testatrix in these stocks without covenants of warranty. The instrument was executed at the request of the testatrix, who was of sufficient mental ability and intelligence to appreciate its legal consequence. The Brockton Savings Bank was thereby authorized to execute and deliver such instruments as might be necessary to transfer title to the stocks to the defendant. Later, the note of the testatrix was surrendered and cancelled, a new note was executed by the defendant to the bank secured by the same collateral, and the bank undertook to cause the stocks to be transferred to the name of the defendant. This note was paid out of money received by the testatrix from other sources. The defendant furnished no money toward the payment of the note. The instrument transferring the stocks to the defendant was absolute in form. No...
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