Murphy v. Donovan

• Decision Date: 10 September 1936
• Citation: 295 Mass. 311,3 N.E.2d 734
• Parties: MURPHY v. DONOVAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

295 Mass. 311

3 N.E.2d 734

MURPHY v. DONOVAN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

September 10, 1936

Petition by Mary Murphy, executrix of the will of Hannah Murphy, against Margaret F. Donovan and others. From a decree dismissing the petition, the executrix appeals.

Affirmed.

Where entire evidence is reported, an appeal brings before Supreme Judicial Court questions of fact as well as of law, and though court is bound to examine evidence and decide case upon its own judgment, a decision based on oral testimony will not be reversed unless plainly wrong.

Appeals from Probate Court, Suffolk County Campbell and Dolan, judges.

W. L Sullivan, of Boston, for appellant.

C. P. Houston, of Boston, for appellees.

RUGG Chief Justice.

This is a petition brought in the Probate Court by the executrix of the will of Hannah Murphy to obtain the proceeds of deposits in two savings banks which stood originally in the name of the testatrix and which were transferred to Margaret F. Donovan, hereafter called the respondent. It is alleged that the respondent obtained these deposits by the exercise of fraud and undue influence upon the testatrix while enfeebled in mind and body. That was the sole issue of fact raised at the hearing.

The case is here on appeal by the petitioner from a decree dismissing the petition. That decree was entered on May 9, 1935. On the following day the petitioner claimed an appeal. G.L.(Ter.Ed.) c. 215, § 9. On May 10, 1935, and within the time allowed by law she made a request for a report of the material facts found by the trial judge. G.L.(Ter.Ed.) c. 215, § 11. With respect to that request, the trial judge, on June 6, 1935, and before filing such report, made an order that the petitioner file in court within twenty days a transcript of the evidence taken at the hearing. The petitioner thereupon filed a motion that the time for filing such transcript be extended twenty days after the date of the filing of the report of the material facts, alleging as grounds that the order of the trial judge was incorrect, and would impose a hardship upon the estate in expending a large sum of money for the transcript and that there was no need of such transcript at that time in order that the appeal might go forward seasonably. This motion was denied and the petitioner appealed. The report of material facts was filed on August 3, 1935.

There was no error in denying this motion of the petitioner. It is provided by G.L.(Ter.Ed.) c. 231, § 121, which by section 144 is made applicable to probate courts, that the ‘ presiding justice may order the appellant * * * to provide him with a transcript of the evidence * * * within such time, not less than ten days after the date of the order, as the presiding justice designates.’ The order of June 6, 1935, was within this provision. The petitioner having appealed on May 10, 1935, was clearly an ‘ appellant’ within the meaning of that word in said section 121. The order of June 6, 1935, was made with reference to the previous request of the petitioner for a report of the findings of material facts made by the trial judge. The right of a party to a report of material facts under G.L.(Ter.Ed.) c. 215, § 11, is dependent not upon having taken an appeal but upon being ‘ entitled to appeal.’ This may not have been true under G.L. c. 215, § 11, which was repealed by St. 1931, c. 426, § 283, enacting the section as it now stands. It is conceivable that under the present statutes a party may be entitled as of right to a report of the findings of material facts made by the judge and yet not be liable to an order to file a transcript of the evidence under G.L.(Ter.Ed.) c. 231, § 121. In any event the power conferred upon the trial judge by said section 121 in the circumstances of the case at bar was ample. He was not required to give reasons for his action. The obligation imposed upon the party by such an order is imperative and unequivocal. There is no merit in the argument of the petitioner that such transcript cannot be required after an appeal and before the requested report of material facts found by the trial judge has been filed. The words of the governing statutes afford no support for such contention. They make no distinction in this particular between the superior and probate courts. Richmond Co-operative Association, Inc. v. Gill, 285 Mass. 50, 188 N.E. 495.

The findings of material facts made by the trial judge in substance were these: The testatrix during a life spent chiefly in domestic service accumulated about $18,000 all of which was in savings banks. The inventory of her estate shows personal property of $11,689.08. The deposits in two banks, ownership of which is here in dispute amount to $6,835.71. The testatrix was about seventy years of age at the time she died in December, 1933. The cause of her death was chronic myocarditis and arteriosclerosis. In August, 1929, she suffered injuries in an automobile accident in consequence of which she was taken to the city hospital in Boston. After staying there several months she was at various private homes and was a semi-invalid until in October, 1931, she was taken to a hospital in Cambridge where she remained until her death. Since 1929 and perhaps before that time she had some heart trouble, became dizzy at times and forgot where she put articles but the trial judge discovered ‘ nothing in the evidence * * * [to] warrant’ him in ‘ finding that she was not normal or that she was of unsound mind.’ He found that ‘ she was mentally capable of transacting business of any kind up to her last sickness which began about December 1, 1933.’ The tstatrix had a number of relatives but was not in close touch with any of them until after her automobile accident. The...