Webster v. Kelly 

• Decision Date: 03 March 1931
• Citation: 175 N.E. 69,274 Mass. 564
• Parties: WEBSTER v. KELLY et ux.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

274 Mass. 564

175 N.E. 69

WEBSTER

v.KELLY et ux.

Supreme Judicial Court of Massachusetts, Suffolk.

March 3, 1931.

Appeal from Superior Court, Suffolk County; John D. McLaughlin, Judge.

Suit by Hannah M. Webster against William J. Kelly and wife. From the decree, complainant and defendants appeal.

Modified, and, as so modified, affirmed.

H. W. Packer, of Boston, for plaintiff.

G. R. Farnum, of Boston, and J. J. O'Neill, of Milton, for defendants.

PIERCE, J.

This is a bill in equity brought by Hannah M. Webster against the defendant William J. Kelly, hereinafter called the defendant, and his wife, Maud A. Kelly, wherein the plaintiff prays that they be ordered to reconveythe premises described in the bill of complaint. Upon the completion of the pleadings the case was referred to a master under the usual rule. Upon the filing of his report a judge of the superior court made rulings on exceptions, overruled exceptions to the report numbered one to ten inclusive, and number thirteen, and sustained exceptions numbered eleven and twelve. He refused to recommit the report and ordered that a decree be entered ‘adjudging said deeds to be fraudulent and void,’ and directing that upon the payment of a stated sum of money a reconveyance of the premises described be made to the plaintiff. Upon this order no interlocutory decree was filed and entered until April 2, 1930.

On January 12, 1926, the same judge referred the cause to a ‘Special Master to hear the parties and their evidence under the usual order of reference and to report upon the following issues: (1) Is the complainant liable to the respondent William J. Kelly for legal services rendered, and, if so, (2) The services rendered and the amount which the respondent William J. Kelly is entitled to recover therefor.’ Pursuant to the order, the ‘special master’ heard the parties, examined their evidence and exhibits and reported his findings to the court on January 7, 1927. The plaintiff filed eighty-one objections to this report. She also filed a motion ‘(1) That the report by * * * [the special master] be declared of no effect and stricken from the record. (2) That the cause be recommitted to the said * * * [special master] for the sole purpose of his reporting the evidence that was heard before him. (3) That the court determine the amount, if any of defendant's compensation upon the evidence thus reported and upon any additional evidence which the court may allow the parties to introduce. (4) For such other and further relief as to the court may seem just and proper.’ The plaintiff also filed an affidavit dealing with her objections and exceptions to the master's report, and a further affidavit ‘designed to give a connected story of what Kelly himself claimed he did for Mrs. Webster.’ On February 28, 1927, the motion to recommit was allowed ‘only to report the evidence upon the exceptions' numbered sixty-four, seventy-four and seventy-five; the ruling on these exceptions was to await the coming in of the evidence. All other exceptions were overruled. The plaintiff excepted to the rulings on exceptions and motion to recommit and duly appealed to this court.

The special master pursuant to the order duly filed in court a supplementary report with a report of the evidence. The plaintiff filed a motion for the recommittal of this report. This motion was denied, after hearing, on October 25, 1927, and on March 3, 1928, an interlocutory decree was filed wherein it was ordered, adjudged and decreed ‘that each of the several objections and exceptions of the plaintiff to the master's supplementary report be and hereby is overruled; that the plaintiff's motion to recommit the said supplementary report be and hereby is overruled; that the plaintiff's exception to the denial by the [special] master * * * of plaintiff's motion to strike out the question and answer on pages 8 and 9 of his final report be and hereby is overruled; that each of the plaintiff's several exceptions to the admission and exclusion of evidence appearing on pages 8, 9 and 10 of the supplementary report be and hereby is overruled, and that the final report of the [special] master * * * and his supplementary report be and hereby are confirmed.’ From this decree the plaintiff appealed.

On March 14, 1930, the plaintiff filed forty-nine requests for rulings and findings. On March 29, 1930, she filed a motion that all the evidence before the special master, the same being duly transcribed and available for filing as a part of the record, be filed with the court. This motion was denied and the plaintiff excepted. As respects this motion the judge of the superior court filed the following statement for incorporation in appeal record: ‘When this case was about to be referred to * * * [the special] master to determine whether Mr. Kelly was entitled to be compensated by Mrs. Webster for legal services rendered, and, if so, in what amount, the parties agreed upon a form of interlocutory decree, referring the case accordingly. In the form agreed upon, it was provided that the master should ‘hear the parties and their evidence and to report the evidence, his findings of fact, and rulings of law to the court upon the issues agreed upon.’ This agreement was signed by all the parties and was submitted to me; and I, after retaining the form of proposed decree, struck out the words ‘the evidence, his findings of fact, and rulings of law to the court,’ inserting in my own handwriting, in lieu of the words just struck out, the words ‘under the usual order of reference,’ leaving the order in its presents form, and handed the decree, thus referring the matter to * * * [the special master], to the clerk, who entered it. The parties then went to hearing on it, and the master reported accordingly. After the decree had been finally entered, counsel for the plaintiff never made any objection whatsoever to the change as above noted, and went to the hearing before the master with full knowledge of said change. Not until the hearings before me on the form of the final decree in the case did counsel ever make any reference to the change, except in so far as the record affirmatively shows.'

In connection with the final decree the plaintiff filed requests for rulings, and at her request, an interlocutory decree was filed on April 2, 1930, relating to the rulings of the judge dated January 12, 1925, supra. On June 18, 1930, a final decree was entered adjudging the deed from the plaintiff to the defendant and from him to his wife voidable, and voiding them; and decreeing that the plaintiff was indebted to the defendant for $253.82 expended by him in repairing the premises which had been deeded to him, $10 for money loaned, $6,000 for legal services and $1,219.33 interest from January 7, 1927 (the date of the filing of the special master's report) a total of $7,483.15. The decree further provided that upon payment by the plaintiff to the defendant of this total sum, with interest thereon to the day of payment, within ninety days from the date of the entry of the decree, the premises should be deeded back to the plaintiff and she should recover her costs, but upon the failure of the plaintiff to pay said sum within said time the bill should be dismissed, but without costs. From this final decree both plaintiff and defendants apealed to this court.

The circumstances which gave rise to this suit, as they are disclosed by the reports of the masters, in substance are as follows: after the death of her husband on December 24, 1918, the plaintiff, an elderly woman who had become estranged from her adopted son, was in need of ‘advice in regard to the management of her real estate.’ She was the owner of her residence, 677 Cambridge street, in the Brighton district of Boston, and of two apartment houses. The defendant ‘was a tenant’ in one of these apartments. She consulted the defendant for the reason that he was an attorney at law and for several years prior to her husband's death had acted as his counsel in various matters. Her husband had great friendship for the defendant and great confidence in him, and on his dying bed told the plaintiff to consult the defendant in regard to her affairs and that he would look after her affairs properly and competently, both as an attorney and as a friend. The defendant, with the assistance of the adopted son of the plaintiff, succeeded in restoring the apartments to a paying basis and in selling one of them at an advantageous price. In July, 1920, the plaintiff, who had paid the defendant nothing for his services, because he had served her husband as legal adviser without compensation and had helped her since her husband's death, expressed the wish to give him several articles of furniture in her residence and to give him her residence after he death. The defendant assented, but informed her that under the circumstances he ought not to make the will and ‘suggested that she go to one of the judges of the local court for that purpose.’ In consequence of this advice she made out a list of the furniture which she desired to leave the...