Ross v. Ross

• Decision Date: 07 January 1953
• Citation: 329 Mass. 644,110 N.E.2d 108
• Parties: ROSS v. ROSS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 108

110 N.E.2d 108

329 Mass. 644

ROSS v. ROSS et al.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Oct. 9, 1952.

Decided Jan. 7, 1953.

Herbert A. Baker, Norwood (Boston and J. S. Dennehy, Newtonville, with him), for petitioner.

Francis D. Branca, Dorchester, for respondent.

Before QUA, C. J., and RONAN, WILKINS, SPALDING and COUNIHAN, JJ.

SPALDING, Justice.

This petition in equity is brought to recover assets alleged to belong to the estate of John D. Ross, hereinafter sometimes called Ross. The petitioner is Ross' widow and the administratrix of his estate. The respondents are Lillian G. and Tena B. Ross, sister and mother, respectively, of Ross. From a decree favorable to the petitioner the respondent Lillian G. Ross appealed. The judge found the material facts, and the evidence is reported.

The following is a summary of the facts found by the judge: The petitioner and Ross were married in this Commonwealth in 1929. In 1933 they moved to Maine, where they resided for about ten years. Out of their joint earnings (the petitioner being employed as a nurse) they acquired a home, title to which was taken in the petitioner's name. In 1943 they moved to Westwood in this Commonwealth. In 1944 the house in Maine was sold and the net proceeds of the sale, $3,500.04, were eventually deposited in their joint names in a bank in Norwood. Two children, a son and a daughter were born of the marriage, and their ages at the time of the hearing below were twenty-one and eighteen, respectively. In the summer of 1949 discord developed between the petitioner and her husband, and she left him in August. The separation lasted until December, 1949. On January 4, 1951, the petitioner again left her husband and never lived with him thereafter. This separation was 'occasioned by * * * [his] treatment of * * * [the petitioner] and [by] his failure to support his family.'

On September 8, 1949, which was about three weeks after the beginning of the first separation, Ross visited the bank in Norwood in which he and his wife had a joint account and withdrew the entire balance, and redeposited it there in his own name. On January 4, 1951, when the second separation occurred, Ross, accompanied by one Aldrich, a friend, visited three banks. One was the bank in Norwood, just referred to, and the other two were in Dedham. He told Aldrich that he was going to withdraw all of the funds in his savings accounts. From the Norwood bank he withdrew the entire balance, $701.81. When he came out of the bank Ross showed the cash to Aldrich, and said that his wife and children, whom he characterized in words of opprobrium, would 'never lay their hands on it.' Ross then went to the two banks in Dedham, in each of which he had an account standing in his own name. In one he made a small deposit. From the other he withdrew the balance on deposit ($3,544.19) which was paid to him by check. Ross then told Aldrich that he was going to his sister's apartment in Roxbury where he had hidden $3,200. During that day, Ross, who had on prior occasions discussed with Aldrich the possibility of going west together on a business venture, renewed the discussion and offered to invest $10,000 if Aldrich would go in with him. Aldrich rejected the proposal.

Ross then went to the apartment of his sister Lillian (one of the respondents here) who at that time was at home and ill. Lillian lived with her mother, the respondent Tena B. Ross, who was also at home when Ross arrived. Ross told them of the withdrawals which he had just made. Early in the afternoon he went to the Eliot Savings Bank in Boston, where he opened a joint account in the names of himself and Lillian, payable 'to either or the survivor.' The amount deposited was $5,044.19 and was made up of $1,500 in cash and the check of the Dedham bank for $3,544.19. Later that day Ross returned with a signature card which Lillian executed. The pass book of the account was left with her. 'No part of the deposit belonged to Lillian or her mother.' Both knew that Ross and his wife were having domestic difficulties and that they had quarreled that morning. 'There was no intent on the part of * * * [Ross] to make a gift to Lillian of the * * * [cash or check which went into the joint account]. He had no intent to make a gift to Lillian of the Eliot Savings Bank deposit or of any interest therein. I find that the respondent Lillian G. Ross did not act in good faith and intended with her brother to defraud the intestate's wife and family from reaching * * * [his] assets. The mother * * * participated in the fraud.' On three occasions during the next few months Ross obtained the pass book from his sister for the purpose of making two deposits and a withdrawal in relatively small amounts. The withdrawal was for his personal use.

On January 12, 1951, Ross's wife instituted divorce proceedings. On April 6, 1951, she signed a criminal complaint charging him with nonsupport. Beginning in the early part of February Ross resided with his married sister in Connecticut. He came to Westwood on April 11, 1951, but, upon learning that he was wanted by the police hurriedly returned to Connecticut. His residence in Connecticut was for the deliberate purpose of evading the service of process here.

On April 16, 1951, Ross telephoned Lillian from Connecticut and requested her to withdraw the entire sum on deposit in the Eliot Savings Bank and to redeposit it in her own name. About a week later Lillian...