Stitt v. Tribe
| Decision Date | 31 January 1930 |
| Citation | 170 N.E. 48,270 Mass. 204 |
| Parties | STITT v. TRIBE et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Probate Court, Bristol County; Mayhew R. Hitch, Judge.
Petition by Ralph I. Stitt, administrator, against Marion A. Tribe and others. From a decree of the probate court in favor of petitioner, defendant named appeals. Affirmed.
T. F. O'Brien, of New Bedford, for petitioner.
D. R. Radovsky and I. H. Simon, both of Fall River, for respondents.
The defendant Tribe appeals from a decree of the probate court, which declared that certain certificates of stock claimed to belong to her were not a gift, but were assigned and delivered to her to hold for the benefit of the deceased assignor, and which ordered that they be transferred and delivered to the plaintiff administrator. She contends that the court was in error in its findings of fact, and that certain evidence was admitted improperly. The petition alleged that the certificates were obtained by her fraud, duress and undue influence; that the assignor was incompetent mentally; and that it was not intended by the assignor that they should become her property, but that she should be merely a safe depository of them. After hearing, the judge found that there was no fraud, duress or undue influence. He did not pass finally on the question on mental capacity. The defendant has not been prejudiced by rulings upon evidence touching those allegations. We need not consider them.
No good purpose would by served by extended discussion of the evidence. Upon such an appeal this court will consider the evidence and form its own conclusion; but it will not overthrow the findings of the judge who saw and heard the witnesses unless satisfied that he was clearly wrong. Cook v. Mosher, 243 Mass. 149, 152, 137 N. E. 299;Howard v. Smith, 249 Mass. 522, 144 N. E. 372. We have considered the evidence reported, and discover no error in the finding that the certificates in question were placed with Mrs. Tribe as a depository, and never became her absolute property. We treat the exceptions to the rulings on evidence other than to the admission of testimony of W. S. Downey and of the unsigned document connected therewith as waived. There was nothing in them, and they properly were not argued in her brief.
The document and portions of the testimony of W. S. Downey excepted to were admitted properly. They were competent on the issues then before the court of undue influence and of mental...
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