Thompson v. Thompson

• Decision Date: 27 October 1942
• Citation: 44 N.E.2d 651,312 Mass. 245
• Parties: THOMPSON v. THOMPSON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

312 Mass. 245

44 N.E.2d 651

THOMPSON

v.THOMPSON et al.

Supreme Judicial Court of Massachusetts, Hampden.

Oct. 27, 1942.

Petition by Louis F. Thompson, administrator, against Mary E. Thompson and another to establish petitioner's ownership in certificate of ten shares of defendant Chicopee Co-operative Bank. From decree dismissing the petition, the petitioner appeals.

Affirmed.Appeal from Probate Court, Hampden County; T. H. Stapleton, Judge.

Before FIELD, C. J., and QUA, DOLAN, COX, and RONAN, JJ.

H. Ritter, of Chicopee, for petitioner.

John D. Kaps, of Springfield, for respondent Mary E. Thompson.

John P. Kirby and Emerson S. Searle, both of Springfield, for respondent Chicopee Co-operative Bank.

RONAN, Justice.

This is a petition by the administrator of the estate of Charlotte W. Thompson, the wife of Fred H. Thompson, against Mary E. Thompson and the Chicopee Co-operative Bank to establish the petitioner's ownership in a certificate of ten shares of the said bank which stands in the name of Fred H. Thompson or Mary E. Thompson. The petitioner appealed from decree dismissing the petition.

It appears from a report of the material facts made by the judge of the Probate Court under G.L.(Ter.Ed.) c. 215, § 11, that ‘an account was opened’ at the bank on August 6, 1912, in the name of Mrs. Fred H. Thompson; that monthly payments were made regularly up to the death of Mrs. Thompson on September 14, 1922, and thereafter until the shares matured in October, 1924, when a certificate was issued to Fred H. Thompson, who, on May 7, 1940, assigned the certificate by an indorsement thereon to Fred H. Thompson or Mary E. Thompson. The latter was his unmarried daughter, who lived with him and did all the housework for many years, much of which was done without pay up to the time the certificate was assigned to her. All of the money that ‘went into this account’ was earned by Thompson, and there was no evidence that any person other than he ever made any of these monthly payments. At the time of the death of Mrs. Thompson there were several bank accounts in the joint names of Thompson and his wife. In all of them the latter was described as Charlotte or Lottie Thompson. Thompson died on May 17, 1940. The judge stated that he was not convinced upon all the evidence that Thompson intended to open the account in his wife's name and that there was no evidence that he made a gift of the account to her. He found that the petitioner had failed to establish that his intestate was the owner of the account.

The evidence is not reported. The facts stated by the judge in the report of the material facts must be deemed to be all the facts that he had in mind in entering the final decree. No findings other than those reported can be implied from the entry of the decree. These findings of fact must be accepted as true unless they appear from the report itself to be mutually inconsistent or plainly wrong and, if not, then the only question presented is whether the decree entered was supported by the material facts reported. Bottoms v. Carlz, 310 Mass. 29, 36 N.E.2d 379;Quigley v. Quigley, 310 Mass. 415, 38 N.E.2d 624;Wiley v. Fuller, 310 Mass. 597, 39 N.E.2d 418.

The case must be decided solely upon the reported findings. If the petitioner desired to attack the findings as not supported by the evidence, he could have secured a report of the evidence and could have had his contentions determined by an examination of the testimony. The exhibit containing the statement of the testimony which an absent witness would have given if called as a witness ought not to have been made a part of the record and cannot be considered since the evidence is not reported. Romanausky v. Skutulas, 258 Mass. 190, 154 N.E. 856;Gallagher v. Phinney, 284 Mass. 255, 187 N.E. 612.

Where there is a dispute as to the ownership of an account...