McPhee v. Colburn
| Decision Date | 21 December 1953 |
| Parties | McPHEE v. COLBURN. |
| Court | New Hampshire Supreme Court |
Louis M. Janelle, Nashua, for plaintiff.
Hamblett, Moran & Hamblett, Charles K. Hamblett, Nashua, for defendant.
The defendant seeks to question the sufficiency of the evidence to support certain findings of the Trial Court, although the issue was not raised before the case was submitted. In particular he seeks upon this ground to question the findings that on the death of Mabel C. Colburn the joint accounts were part of the residue of the estate of James E. Colburn, and that the defendant acquired no interest in the funds on deposit during Mrs. Colburn's lifetime. It is well settled that the issue of the sufficiency of the evidence may not first be raised after verdict as a matter of right. Eastman v. Waisman, 94 N.H. 253, 51 A.2d 151; Perreault v. Lyons, N.H., 99 A.2d 916. The defendant is entitled however, to raise any questions of law apparent upon the face of findings and rulings made. Freeman v. Pacific Mills, 84 N.H. 383, 151 A. 707; Eastman v. Waisman, supra, 94 N.H. 254, 51 A.2d 151.
The finding that the defendant acquired no rights in the accounts by virtue of what transpired between him and his mother during her lifetime were clearly permissible upon the evidence. A conclusion that a debt from Mrs. Colburn to the defendant arose out of assistance which he had furnished her was not compelled, see Blake v. Lord, 90 N.H. 42, 44, 4 A.2d 360; Decatur v. Cooper, 85 N.H. 250, 157 A. 706, nor was the evidence such as to require a finding that a completed gift of a present interest in the accounts resulted from Mrs. Colburn's delivery of the account books to the defendant. New Hampshire Sav. Bank v. McMullen, 88 N.H. 123, 128, 185 A. 158. The defendant testified: 'she wanted to give me money but I wouldn't take it'; 'she gave it to me to take the whole thing if I wanted it, but I never touched it'; 'I owned the safety deposit box anyway, and I kept [the books] in there, and she could go anytime she wanted and get them'; 'she was still using that money.' His own testimony was sufficient to overcome any presumption of acceptance of a gift tendered by his mother. Similarly there was sufficient evidence to warrant the finding that the proceeds of the sale of the stock and substantially all of the proceeds from the house were deposited in the accounts in question. The findings may not be successfully attacked for want of evidence to support them.
Mrs. Colburn's interest in the proceeds from the sale of the house and stock was that of a life tenant with power of disposal, an estate well recognized in this jurisdiction. In re Gile's Estate, 95 N.H. 270, 61 A.2d 798; Belford v. Olson, 94 N.H. 278, 280, 51 A.2d 635 and cases cited. Her power of disposal was not unlimited, but in accordance with the will 'if [the] income should be insufficient to properly care for her' permitted her to use 'so much of the principal as * * * necessary for her proper care.' As the defendant correctly points out the will also provided that she should be 'the sole judge of what is right and proper for her suitable care and maintenance,' but this provision does little more than reaffirm the previously expressed limitation restricting her use of principal to use for her 'proper,' 'suitable care.' Since it is found that no effective transfer was made to the defendant, the extent to which Mrs. Colburn's power of disposal was subject to a limitation of reasonable necessity for her support, see Orr v. Moses, 94 N.H. 309, 312, 52 A.2d 128, and cases cited, need not be determined. Any assets of her husband's estate which she had not used for her suitable care and maintenance remained assets of his estate. Shapleigh v. Shapleigh, 69 N.H. 577, 581, 44 A. 107. At her death title to such property was controlled by the provision of his will giving to the plaintiff and the defendant in equal shares 'what remains of my property.' It follows that there was no error in the ruling that the funds on deposit at Mrs. Colburn's death, already found to have derived from the sale of the house and the stock formerly belonging to James E. Colburn, were a part of the residue of his estate.
The defendant strongly urges that the proceeds from the sale of the stock stand upon a different footing from those derived from the real estate, and were freed of any limitation contained...
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