Simpkins v. Old Colony Trust Co.

• Decision Date: 01 March 1926
• Citation: 151 N.E. 87,254 Mass. 576
• Parties: SIMPKINS v. OLD COLONY TRUST CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

254 Mass. 576

151 N.E. 87

SIMPKINS

v.OLD COLONY TRUST CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1926.

Appeal from Superior Court, Suffolk County; Hammond, Judge.

Suit in equity by Nora A. Simpkins against the Old Colony Trust Company and another to have delivered to plaintiff contents of a safe deposit box, together with a commercial deposit in defendant bank. From interlocutory decree overruling plaintiff's exception to the master's report and supplemental reports and confirming them, and from final decree dismissing the bill, complainant appeals. Interlocutory and final decrees affirmed.J. C. Johnston, of Boston, for appellant.

W. H. Irish, of Boston, for appellees.

RUGG, C. J.

The plaintiff in this suit in equity seeks to have delivered to her the contents of a safe deposit box, together with the sum of $1,011.89 deposited in the commercial department of the defendant bank. The box was rented and the deposit made by William F. West, who died on September 26, 1919. The defendant admits that the box contains five books each representing a deposit in a savings bank, one book representing a deposit in the savings department of a trust company, four $50 United States Liberty Bonds, and divers trinkets and mementos, and that it has in its bank the commercial deposit referred to, and avers that it is willing to deliver all this property to the rightful owner. The administrator of the estate of West asserts that title to the property is in the estate. The case was referred to a master by an order directing him ‘to hear the parties and their evidence and report his findings to the court together with such facts and questions of law as either party may request.’

The master found that the deceased was about fifty-five years of age, and that the plaintiff was about forty-five years of age; that they first met in 1914; that in July, 1919, he went to live at her home, where she supported herself by keeping boarders, and remained until his final illness; that during this time a libel for divorce brought by the plaintiff against her husband was pending, and the plaintiff and West had mutually promised to marry each other when the divorce should be granted; that a decree was not entered in her favor until November, 1919; that the plaintiff bought the house where she lived, that West paid a deposit of $100 as part of the purchase price, and that they intended to make this place their home after their marriage; that when he lived at the plaintiff's house he purchased the food there consumed and paid $15 a week for room rent.

On September 19, 1919, West complained of illness; on the following day he was attended by a physician who found that he was suffering from a grippe cold; on the next day, which was Sunday, he complained of feeling worse and in the afternoon requested the plaintiff to get him a pad of paper and ink; he then wrote a paper, marked ‘A,’ of the following tenor:

‘Winthrop Beach, Sept. 22, 1919.

‘I, William F. West, do hereby of my own free will and accord will to Nora Angela Simpkins, my fiancée, all my personal and real estate.

[Signed] William F. West.'

After West had written this paper he requested the plaintiff to go to his trousers pocket and get a bunch of keys, and find one with the number 1792 on it; this was the key to his safe deposit box in the bank of the defendant, and the intestate removed it from the key-ring. He then wrote this paper:

‘1792.

Winthrop Beach, Sept. 22, 1919.

‘Old Colony Trust Co.

‘Please deliver to bearer, Mrs. Nora Angela Simpkins, the contents of box 1792.

‘[Signed] William F. West.’

Upon another undated paper he wrote the name and address of his brother and of his sister. He then handed to the plaintiff the three papers above described and the key and said:

‘This is the key to my safe deposit box. I want you to take it and keep it, and with this order you can get the contents of the box.’

He also told her he wanted her to have all of his property; that his brother and sister were ‘well fixed.’ He asked the plaintiff to go to his bureau drawer and obtain a pass book in the the commercial department of the defendant company. She did as requested and he told her that he wanted her to have what was in it. The plaintiff then placed the papers and the pass book in a bureau drawer in the room occupied by West, and the key in her hand bag. The originals of the three papers, and key and the pass book were received by her on Sunday, September 21, 1919, although the two papers first mentioned were dated September 22, as there was some doubt of the legality of a paper executed on a Sunday. The intestate knew that a will would require witnesses and he did not request the plaintiff to obtain any. He stated to several people before his illness that he wanted the plaintiff to have all his property. Although he was very sick he did not refer to his death, and his physicians expected his recovery up to the day before he died, which was on the Friday following the Sunday on which these events took place.

After the filing of the master's report, at the suggestion of the judge the report was recommitted with a direction to the master ‘to find as a fact, upon the evidence submitted to him, whether or not there was any gift by the intestate to the plaintiff in this case, and if so, what property was embraced in said gift, and whether said gift was a gift inter vivos or a gift causa mortis.’ In the supplemental report filed pursuant to this commitment the master states:

‘I find that William F. West intended that upon his death all the property in question should go to Nora A. Simpkins, the plaintiff in this action, and to that end prepared the instrument set forth in my original report and marked ‘Exhibit A,’ but said instrument was insufficient in law to act as a testamentary disposition of said property. Upon all the evidence I find there was no gift, either inter vivos or causa mortis.'

The case is before this court on an appeal from an interlocutory decree overruling the plaintiff's exceptions to the master's report and to his supplemental reports and confirming the reports, and from a final decree dismissing the bill.

[1] The evidence is not reported. The only facts are stated in the master's report. They must be accepted as true and must stand as final unless upon the face of the report they are inconsistent or repugnant one to another and plainly wrong. Glover v. Waltham Laundry Co., 127 N. E. 420, 235 Mass. 330, 334;Porter v. Spring, 145 N. E. 52, 250 Mass. 83, 84.

The instrument termed ‘A,’ in form a will, was ineffective as a will because lacking the required witnesses. It confers no rights whatever on the plaintiff.

There was no gift causa mortis. Nothing in the record indicates that the intestate did what he did in present contemplation of the near approach of death. Parish v. Stone, 14 Pick. 198, 203,25 Am. Dec. 378;Pierce v. Boston Five Cents Savings Bank, 129 Mass. 425, 433,37 Am. Rep. 371. This is the express finding of the master. It is well supported by his subsidiary findings.

The difficult question is whether the finding that there was no gift inter vivos can be supported. This finding must be interpreted in the light of all that occurred before the master. He thought that he had found all the material facts in his original report, so that the question whether there was a gift or not had become a pure question of law. The concluding words of his original report were:

‘I respectfullyreport for the consideration of the court as matter of law, whether, upon the facts found, the intestate made a gift of said property to the plaintiff.’

It was in the face of those concluding words that the case was recommitted to him by the court with a positive direction ‘to find as a fact upon the evidence’ whether there was a gift. It must be presumed that...