Smith v. Tipping
| Decision Date | 28 October 1965 |
| Citation | 349 Mass. 590,211 N.E.2d 231 |
| Parties | Charles Gaston SMITH, Jr., Administrator, v. Violet G. TIPPING et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Harold D. Goldberg, Boston, for respondent Tipping.
Raymond Rambach, Boston (Charles Gaston Smith, Jr., Boston, with him), for petitioner.
Before SPALDING, WHITTEMORE, CUTTER, KIRK, SPIEGEL and REARDON, JJ.
This is an appeal by the respondent Violet G. Tipping from a decree of the Probate Court for Suffolk County which, in substantial part, declares that the sum of $11,351.66, with any interest thereon, standing in Violet's name in an account with The Boston Five Cents Savings Bank is the property of the estate of Agnes M. Kelly and orders the bank to pay this amount with interest to the petitioner as administrator of Agnes's estate. The evidence is reported. There are no findings.
The evidence shows that John F. Kelly and his wife, Agnes, on April 16, 1962, conveyed to a third party real estate in Chelsea held by them as tenants by the entirety. Earlier, John had received $1,000 as a deposit. Except as noted below, the disposition of this sum is not shown. On April 16, 1962, John received three checks totaling $11,000 and gave a return check for $50.07. The sum of $10,949.93 was the net balance of the purchase price. The inference was justified that the adjusting check of $50.07 was paid from the $1,000 deposit.
The checks totaling $11,000 were deposited by John in a savings account in his name. On May 14, 1963, John withdrew from this account $11,000 and accumulated interest of $351.66. Of this sum, $6,351.66 was in a cashier's check; the balance was in cash. On July 16, 1963, John delivered to Violet $11,651.66 by transferring the cashier's check for $6,351.66 and delivering $5,300 in cash. Violet deposited $11,651.66 in The Boston Five Cents Savings Bank on July 19, 1963, withdrew $11,650 on August 8, 1963, and on May 28, 1964, redeposited $11,351.66.
The evidence permitted the inference that $5,000 of the cash sum delivered to Violet was the sum withdrawn from John's account and hence, like the $6,351.66, was proceeds of the sale of the real estate.
Violet testified that John stated that the $11,651.66 was a gift to her and her family. The decree declares that it was not a gift. The decree, in addition to its provision as to the $11,351.66 and interest, orders Violet to turn over to the petitioner the sum of $300, representing the difference between the amount received by her and the sum on deposit in the Boston Five Cents Savings Bank.
John died September 15, 1963. Agnes died November 2, 1963.
The decree as to the $11,351.66 was right. We hold that proceeds of the sale of real estate held by the entirety are personal property held by the entirety. In Ronan v. Ronan, 339 Mass. 460, 463, 159 N.E.2d 653, we held that proceeds from an eminent domain condemnation of realty held by the entirety were held by...
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