Witherington v. Eldredge

• Decision Date: 19 June 1928
• Parties: WITHERINGTON v. ELDREDGE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

264 Mass. 166

162 N.E. 300

WITHERINGTON

v.ELDREDGE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 19, 1928.

Appeal from Superior Court, Suffolk County; M. Morton, Judge.

Suit in equity by Mae S. Witherington as guardian of Helen Farnsworth Eldredge, an incompetent person, against Marion W. Eldredge and others. On the death of the incompetent, the suit was prosecuted by plaintiff and another individually and by plaintiff as administratrix, and defendant named filed a cross-bill. Final decree for defendants, and named plaintiff appeals. Affirmed.F. W. Mansfield and A. Mehlinger, both of Boston, and W. T. Way, of Plymouth, for appellant.

J. H. Devine and A. Lincoln, both of Boston, for appellees.

CROSBY, J.

This is a suit in equity to cancel a deed executed by Helen Farnsworth Eldredge, the plaintiff's intestate, and her deceased husband, Clarence F. Eldredge, whereby they conveyed, through a third parson, a certain parcel of real estate owned by them jointly to Clarence F. Eldredge, it being alleged that the deed was executed without consideration, that Eldredge induced his wife to execute it by false representations, and that at the time of such execution she was of unsound mind and without mental capacity to make the conveyance. The defendant Marion W. Eldredge, who is a daughter of Eldredge by his first wife and who will hereafter be referred to as the defendant, filed a cross-bill, setting up the affirmative defense that Eldredge, Helen Farnsworth Eldredge and the defendant entered into an oral agreement in pursuance of which the deed was executed. The jury answered certain issues submitted to them, and further findings were made by a judge of the superior court. A final decree was entered in favor of the defendants.

A brief statement of undisputed facts is as follows: On February 14, 1918, Lucy W. Eldredge, the first wife of Clarence F. Eldredge, died. On January 9, 1918, the plaintiff's intestate had married one Bascom. A suit, brought against Eldredge by Bascom for alienation of his wife's affections, was settled on May 17, and on June 22 Bascom was granted a divorce from his wife, which became absolute on December 23. On February 22, 1919, Eldredge went through the form of a marriage ceremony with Helen Farnsworth Bascom, in New York City; they immediately returned to Boston and lived together upon the premises which are the subject of this suit. A second marriage ceremony was subsequently performed in Boston.

The real estate involved in this litigation had been purchased by Eldredge on November 25, 1918, and on April 18, 1919, was conveyed by him through one McQuaid to himself and Helen Farnsworth Eldredge as tenants by the entirety. Before this conveyance he had assigned to her four policies of insurance on his life, amounting to $13,000, which previously had been payable to his estate. These policies were the subject of litigation in Witherington v. Nickerson, 256 Mass. 351, 152 N. E. 707. For several years before the marriage of Eldredge to Mrs. Bascom he had been intimate with her. The defendant had lived with her father; she had a feeling of resentment toward his second wife and the family relations were not harmonious. There was evidence that in January, 1920, Mr. and Mrs. Eldredge and the defendant entered into an oral agreement by the terms of which Mrs. Eldredge agreed, after considerable discussion, to convey to Eldredge all her interest in the real estate, and in the insurance policies, and he agreed to make a will whereby, with the exception of some minor bequests, all his property, including the real estate in question and the proceeds of the insurance policies, would be left in trust for the benefit of Mrs. Eldredge during her lifetime; the principal and income were to be used to insure her comfortable support and maintenance, and after her death the remainder of the property was to be paid over to the defendant, who agreed not to contest any will made by her father in pursuance of the agreement, and to give up or ‘submerge’ any feeling of resentment resulting from his second marriage, and to make their home life harmonious. On April 4, 1922, Eldredge and his wife purported to convey the premises previously owned by them as tenants by the entirety to one Clarke, who on April 8, 1922, purported to convey the premises to Eldredge.

November 2, 1922, Mrs. Eldredge was adjudged insane by decree of the probate court for the county of Suffolk, and her husband was appointed her guardian. He died February 26, 1925, leaving a will duly executed on December 30, 1924, whereby, pursuant to the terms of the oral agreement, and after making some minor bequests, he left the residue of his estate in trust to the Old Colony Trust Company and to the defendant Nickerson, the income therefrom to be paid to his wife during her life, with power in the discretion of the trustees to apply a part or the whole of the property for her comfort and maintenance, and, after her death and after the payment of charges and expenses incurred on account of his wife, the remainder of the estate was to be transferred to his daughter Marion. On March 26, 1925, the plaintiff Witherington was appointed guardian of Mrs. Eldredge, who died intestate. After this suit was brought and the plaintiff was appointed administratrix of her estate, and after the entry of a final decree in favor of the defendant and the appeal of the plaintiff from the decree, the plaintiff moved that she be allowed to prosecute the suit as administratrix instead of as guardian, and that she and the plaintiff Shannon be joined as parties plaintiff in their individual capacities as heirs of Mrs. Eldredge; the motion was allowed.

The jury having found that the deed to Clarke was delivered on or about April 8, 1922, in accordance with the instructions of the trial judge they found that Mrs. Eldredge was then of sound mind. The jury further found in accordance with the judge's instructions that Eldredge did not make any false or fraudulent representations to his wife in order to induce her to execute and deliver the deed to Clarke. The jury also found that the deeds from Eldredge and his wife to Clarke and from Clarke to Eldredge were not given without consideration, and that there was an oral agreement between Eldredge and his wife and his daughter Marion, as alleged in the cross-bill. After the findings by the jury had been rendered, the case was heard by a judge of the superior court who further found that Eldredge and Mrs. Bascom ‘went to New York, each knowing of the impediment to their marriage in Massachusetts, and with the purpose to avoid the force of Massachusetts laws, and to return here to live’; and he ruled ‘that this first marriage was void in Massachusetts, and that therefore the parties to said attempted marriage were not legally husband and wife, and could contract and enter into said agreement.’ He refused to rule that the oral agreement was invalid and ruled that it was a valid contract; that Marion W. Eldredge, having fully performed her obligations thereunder, was entitled to specific performance thereof. Exceptions and an appeal were taken by the plaintiff to the refusal of the judge to rule as requested, and to certain findings and rulings made. A final decree was entered in accordance with the findings and rulings, on November 15, 1927. From this decree the plaintiff appealed.

[1][2] 1. The question is presented whether the evidence before the jury, the charge of the trial judge, and the plaintiffs' exceptions to his rulings and refusal to rule are properly before this court. The proceedings before the jury are according to the course of the common law, and, therefore, are not strictly speaking a part of the equity suit. It was said by Knowlton, C. J., in Crocker v. Crocker, 188 Mass. 16, 20, 73 N. E. 1068, 1070, that--

‘When such issues are framed, and until they are disposed of by the court, they carry with them the ordinary methods of trial by jury in an action at common law. The verdict may be set aside for good cause, as a verdict may in an action at law.’

In the case at bar the verdict upon the issues submitted is conclusive unless set aside. Langmaid v. Reed, 159 Mass. 409, 411, 34 N. E. 593;Dudley v. Dudley, 176 Mass. 34, 37, 56 N. E. 1011;Dunster v. Goward, 221 Mass. 339, 340, 341, 108 N. E. 1085;Lambert v. Cheney, 221 Mass. 378, 380, 108 N. E. 1078. It follows that exceptions taken at the trial before the jury must be embodied in a bill of exceptions to be raised in this court. See Ingalls v. Oliver, 198 Mass. 345, 346, 84 N. E. 462;Dunster v. Goward, 221 Mass. 339, 108 N. E. 1085;Becker v. Becker, 238 Mass. 362, 365, 130 N. E. 843;Lockhart v. Ferguson, 243 Mass. 226, 228, 229, 137 N. E. 355. Such was the procedure followed in Owen Tire Co. v. National Tire & Rubber Co., 242 Mass. 375, 136 N. E. 117. The provisions of G. L. c. 231, § 113, are applicable. G. L. c. 214, § 25, is applicable only to a hearing before the court, and not to a trial of issues to a jury. See Pigeon's Case, 216 Mass. 51, 55, 102 N. E. 932, Ann. Cas. 1915A, 737. The only provisions for the appointment of a commissioner to take evidence in a suit in equity are under G. L. c. 214, § 24, and Equity Rule 29. There is no provision for the appointment of a commissioner when in an equity suit issues are framed and tried before a jury. The absence of such a provision is due to the fact that it is the function of the official court stenographer, and not of a commissioner, to take such evidence. In this connection see St. 1926, c. 177, whereby a final decree shall be entered in suits in equity although exceptions are pending. It follows that the exceptions taken at the jury trial to the rulings and refusals to rule of the presiding judge are not properly before us on this record.

It is open to the plaintiff to argue that the findings of fact of the trial judge that ‘both Clarence F. Eldredge and Helen F. Bascom went to New...