Robinson v. Pero

• Decision Date: 13 September 1930
• Citation: 172 N.E. 599,272 Mass. 482
• Parties: ROBINSON v. PERO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

272 Mass. 482

172 N.E. 599

ROBINSON

v.PERO.

Supreme Judicial Court of Massachusetts, Middlesex.

Sept. 13, 1930.

Appeal from Probate Court, Middlesex County; John C. Leggat, Judge.

Bill by Francis J. Robinson, administrator of the estate of George Eatough, deceased, against John M. Pero. From an order confirming the master's report as modified, and a final decree dismissing the bill, the administrator appeals.

Affirmed.

William A. Bellamy and Frank E. Knowles, both of Taunton, for appellant.

David J. O'Connell, of Boston, for appellee.

FIELD, J.

This is a bill in equity brought in the Probate Court by the administrator of the estate of George Eatough, who died January 4, 1928, to recover certain coupon bonds alleged to belong to the estate, which the defendant contends were given to him by said Eatough in his lifetime. Mitchell v. Weaver, 242 Mass. 331, 136 N. E. 166. The master to whom the case was referred found subsidiary facts and found further that ‘the transactions of Eatough with * * * [the defendant] did not constitute a valid gift inter vivos.’ The defendant filed objections. The judge filed a so called ‘Memorandum of Decision’ [see Commonwealth v. O'Neil, 233 Mass. 535, 543, 124 N. E. 482] as follows: ‘Upon the master's report of facts found, I rule that there was a valid gift inter vivos. The objections were treated as exceptions under the rule. An order confirming the master's report may be entered except as above modified, and a decree dismissing the petition may be entered.’ The exceptions were not dealt with specifically, but an order, in the nature of an interlocutory decree, confirming the report as modified, and a final decree dismissing the bill were entered. See Druker v. Druker (Mass.) 167 N. E. 638. The plaintiff appealed.

The conclusion of the judge that ‘upon the * * * facts found * * * there was a valid gift inter vivos.’ was not merely a ruling upon the legal effect of the facts found, but involved inferences of fact. See Simpkins v. Old Colony Trust Co., 254 Mass. 576, 581, 151 N. E. 87;Briggs v. Leonard, 261 Mass. 381, 384, 158 N. E. 794. It ‘was open to him to decide that what the report set out required a different finding of fact.’ Robert v. Perron (Mass.) 169 N. E. 489, 490. As we construe the master's finding that there was not a valid gift inter vivos, it was inferred from other facts found. He states, in substance, that his subsidiary findings, set out in the report, ‘furnish a basis on which to rest * * * [his] conclusions.’ Consequently, it was the duty of the judge to draw proper inferences from the findings unaffected by the conclusions of the master, and it is our duty to draw such inferences unaffected by the conclusions of the master of those of the judge. Nichols v. Atherton, 250 Mass. 215, 217, 145 N. E. 277;Barrows v. Fuller, 253 Mass. 79, 83, 148 N. E. 374.

We think that there was a valid gift inter vivos. The deceased in the ‘last part of November, or first of December 1927,’ handed some of the bonds in question to the defendant and ‘in the latter part of December 1927,’ the others, and thereafter the defendant retained possession of them. Transfer of title to the bonds was thereby effected if they were delivered to the defendant by the deceased with the intention on his part of making a present gift of them. Bone v. Holmes, 195 Mass. 495, 81 N. E. 290;Mangan v. Howard, 238 Mass. 1, 130 N. E. 76. The master found, by inference from other facts found by him, that there was no such intention. He found, however, that on the occasion of the first delivery of bonds the deceased said to the defendant, ‘I want to make you this gift, I have been thinking over this some time and I want to make you a present, this will help you out if you have trouble with the Randolph House, this is between you and me and nobody need know anything about it, say nothing,’ and that on the occasion of the second delivery the deceased said, ‘These bonds are all I can turn over now without making trouble, I want to give you what I can, better keep these bonds yourself and don't tell anybody, I have taken off the coupons for a year.’ The natural inference from these statements is that a present gift was intended in each instance and this inference is not overcome by the other findings of fact.

The inference that a present gift was intended is sound even if the conclusion of the master is correct, that...