Thaxter v. Traiser
| Decision Date | 28 February 1940 |
| Citation | 25 N.E.2d 722,305 Mass. 341 |
| Parties | JOSEPH B. THAXTER, executor, v. EVA A. TRAISER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
November 16, 1939.
Present: FIELD, C.
J., DONAHUE LUMMUS, DOLAN, & RONAN, JJ.
Gift.
A conclusion that a husband made a gift to his wife of at least a present interest in bonds, to ripen into full ownership on his death was warranted by findings that he purchased them from proceeds of a sale of real estate which he stated he intended to invest for her benefit, and that most of them on his death were in an envelope bearing her name in a safe deposit box which together they had placed in their names as joint tenants, either or the survivor to have access to it although with her consent he had pledged bonds not found in the box for a personal loan, and had placed the income from all of the bonds in his personal account under an agreement between them that he should pay certain expenses of her real estate and had made return of the income in his personal income tax returns.
PETITION IN EQUITY filed in the Probate Court for the county of Norfolk on January 20, 1939.
The case was heard by Davis, J., and in this court was submitted on briefs.
H. C. Connor & J.
S. Marsh, for the petitioner.
K. D. Johnson, for the respondent.
This is a suit in equity in which Marion J. Thaxter, one of the executrices of and the residuary legatee under the will of Charles H. Traiser, late of Milton deceased, sought to have certain negotiable bonds, claimed by the respondent as a gift from the deceased in his lifetime, decreed to be assets of the estate of the deceased. After the filing of the petition, Marion J. Thaxter died, and the executor of her will was substituted as party petitioner. The respondent is the widow of Charles H. Traiser, hereinafter referred to as the deceased, and is the surviving executrix of his will. The case comes before us on the appeal of the petitioner from the decree entered by the judge that the bonds in question are the property of the respondent.
The evidence is not reported, and the record does not disclose that any request for a report of material facts was made by either of the parties under G.L. (Ter. Ed.) c. 215, Section 11. The judge, however, did make a report of facts entitled "Report of Material Facts." It is not stated in the report by the judge, nor is it indicated therein other than by its title, that the report contains all the facts that entered into his decree. The parties, however, have argued the case as if the report was of all the facts that entered into the decree, and, since the result will be the same as if this were not so, we deal with it on the basis upon which the parties have proceeded. So treated "there is no room for any implication of further findings." Birnbaum v. Pamoukis, 301 Mass. 559 , 562, and cases cited.
The material facts found by the judge are substantially as follows: The securities involved are bearer bonds aggregating in par value $11,000. Included among them are two $1,000 bonds of the Utah Power & Light Company. In 1934 the deceased sold certain real estate in Marblehead for $12,000. He told the respondent that he desired her to have the sum realized from this sale for her needs and that he would invest it so as to give her a monthly income. Bonds of the par value of $4,000 were purchased by the deceased on March 5, 1936, bonds of the par value of $2,000 (those of the Utah Power & Light Company) on March 13, 1936, bonds of the par value of $2,000, on April 6, 1936, bonds of the par value of $2,000, on April 13, 1936 and a bond of the par value of $1,000 on December 9, 1936. The aggregate purchase price of the bonds was $9,913.89. On March 17, 1936, a deposit was made in joint account in the names of the deceased and the respondent in a savings bank. The amount of the deposit is not stated in the report. The joint account was made because of the arrangement of the deceased with the respondent in relation to the proceeds of sale of the real estate before referred to. On March 17, 1936, the deceased and the respondent went to the offices of a trust company where the deceased had a safe deposit box. He introduced the respondent to attendants "at the vault...
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