Stern v. Stern

• Decision Date: 15 June 1953
• Citation: 330 Mass. 312,113 N.E.2d 55
• Parties: STERN v. STERN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 55

113 N.E.2d 55

330 Mass. 312

STERN v. STERN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 4, 1953.

Decided June 15, 1953.

Bernard Kaplan, Boston, Isadore M. Libman, Boston, for plaintiff.

Lee M. Friedman, Boston, Harry Bergson and Max L. Rubin, Boston, for defendants.

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

COUNIHAN, Justice.

This is a suit for a declaratory decree under G.L. (Ter.Ed.) c. 231A, inserted by St.1945, c. 582, § 1, brought by Jesse M. Stern, otherwise called Jesse Stern, to determine his rights in a written declaration of trust, called the Kendall Realty Trust, dated April 30, 1936, and recorded in the Middlesex South District registry of deeds on May 1, 1936, and described hereinafter. The plaintiff appeals from the final decree. He likewise appeals from the denial of a motion for a rehearing and the denial of a motion to correct the record by striking out the entry on the docket 'Pff's exceptions dismissed under Rule 74' so as to permit him to file a bill of exceptions. Doris S. Bachrach was deceased when this suit was begun. The evidence is reported and the judge made findings.

There is no merit in the appeals.

An actual controversy existed between the parties as to the ownership of a four-ninths interest in the trust prior to the commencement of this suit. C. 231A, § 1. At the trial the plaintiff introduced the declaration of trust and rested. Material parts of the declaration read as follows: 'This declaration of trust made in Boston * * * this 30th day of April, 1936, by Benjamin Stern, of Newton * * * and Julius Stern, of Brookline. * * * Whereas by deeds to be recorded herewith, Paul D. Turner, of Malden * * * has conveyed to said Benjamin Stern and Julius Stern, as Trustees under a Declaration to be recorded therewith, certain parcels of land with the buildings thereon situate in Cambridge * * * all as more fully described in said deed[s]. * * * Now therefore this Declaration of Trust Witnesseth: That the said Benjamin Stern and Julius Stern * * * as Trustees hereunder hereby declare that they hold and will hold the premises hereinbefore described * * * in trust to sell and convert the same into cash or personal property and in the meantime to manage and develop the same and to receive the income thereof, all for the benefit of Hattie S. Stern of said Newton, Bertha S. Stern of Brookline, and Jesse Stern of said Newton * * * in the following proportions, to wit: Hattie S. Stern * * * five-eighteenths, Bertha S. Stern * * * five-eighteenths, and Jesse Stern * * * four-ninths. * * *'

The only witness called by the defendants was Mr. Frank L. Kozol, an attorney and a member of the firm which represented some of the defendants in this suit. He otherwise took no part in the trial. We summarize his testimony: He knew the plaintiff and was familiar with his signature. He identified the signature of the plaintiff to a certain instrument dated April 30, 1936, which was admitted in evidence over the objection and subject to the exception of the plaintiff and which reads as follows: 'I, Jesse Stern, of Newton, Middlesex County, Massachusetts, ackowledge and declare that I, my heirs and assigns, hold and will hold the interest which I have in my name in the Kendall Realty Trust of Cambridge, Massachusetts, created by Agreement and Declaration of Trust by Benjamin Stern and Julius Stern dated April 30, 1936, recorded with Middlesex South District Deeds, for the benefit of Hattie S. Stern and others as the property of Doris S. Bachrach, her heirs and assigns. I was named as beneficiary under said Kendall Realty Trust to the extent of four-ninths thereof at the request of said Doris S. Bachrach, of Brookline, she having contributed that proportion of the money with which the property which was declared to be the subject of the trust was purchased. In witness whereof I hereunto set my hand and seal this 30th day of April, 1936. Jesse M. Stern. [Seal] Commonwealth of Massachusetts Suffolk, ss. Boston, April 30, 1936. Personally appeared the above named Jesse Stern and acknowledged the foregoing instrument to be his free act and deed, before me Edward D. Scannell Notary Public 5/8/42.'

Sometime about three years before the trial which began on April 15, 1952, Mr. Kozol talked with Mr. Paul D. Turner, an attorney and a member of the same law firm. Mr. Turner was deceased at the time of the trial. Mr. Turner told him that the largest single contribution to the capital of the trust, by which the property of the trust was acquired, was from Doris S. Bachrach and the other contributions came from Benjamin and Julius Stern. About the same time Mr. Kozol had a talk with the plaintiff in which he gave him a copy of the instrument signed by the plaintiff. He said to the plaintiff, 'Jesse, here is a copy of the instrument that Paul Turner has kept in our vault for Doris Bachrach ever since it was executed. I don't know why you have been fussing over this, but Paul told me you have no ownership in this at all, and that when the trust was executed, you executed this instrument under oath [sic].' The plaintiff said to him, 'the copy that you gave me has a date at the bottom, 5-8-42; that was long after the date when the trust was executed, and I think I signed the paper on that date.' Whereupon Mr. Kozol said, 'Jesse, don't make yourself ridiculous, that is the date of the expiration of Mr. Scannell's commission as a notary.' 'Jesse said, 'Oh,' and that ended that.' Then Jesse said, 'Don't you think, Frank, there is some way I may get a piece of that Kendall Trust?' and Mr. Kozol said, 'No, I don't.' Mr. Scannell whose name appears on the instrument as the notary who took the acknowledgment of the plaintiff was an employee of a company in which the plaintiff was an officer.

The judge found that the declaration of trust and the instrument signed by the plaintiff were executed 'simultaneously, or at least under the same date'; that statements made by the plaintiff to counsel of repute made it clear that the plaintiff knew his true status, 'yet diliberately and without justification is attempting to circumvent that status and secure for himself an interest in said trust'; and that the person 'actually entitled on April 30, 1936, and at all times thereafter to the four-ninths interest in Kendall Realty Trust, now standing in the name of Jesse Stern, was and is Doris S. Bachrach, now deceased, presently represented by' the executor of her estate. On the evidence these findings were not plainly wrong.

The following final decree was entered: 'This cause came on to be heard at this sitting, and was argued by counsel, and upon consideration thereof, it is adjudged, ordered and decreed (1) That the four-ninths interest described in the declaration of trust of the Kendall Realty Trust recorded with Middlesex South District registry of deeds, book 6024, page 66, as belonging to the plaintiff, therein named as Jesse Stern, is the sole property of the estate of Doris S. Bachrach, late of Newton, in the county of Middlesex, and belongs to said estate. (2) That the plaintiff Jesse M. Stern, otherwise known as Jesse Stern be and he hereby is ordered, within twenty-one days after the entry of this decree, by an appropriate instrument in...