Doane v. Doane

Crosby, J. This is a bill in equity brought by the plaintiff as administratrix of the estate of her late husband, William J. O. Doane, against the defendant, who is the mother of the intestate, for the purpose of determining the validity of a note and mortgage given by the intestate to the defendant, the consideration therefor, and the amount, if anything, due thereon. The bill alleges in substance that when the note and mortgage were given, and for some time previously, the relations between the intestate and his wife “were strained;” and that shortly after the note and mortgage were given, a separation took place, through no fault of the wife, and that the parties did not five together afterwards. The bill further alleges that the note and mortgage were without consideration; that they were given, in anticipation of possible legal proceedings which might be brought against the intestate by his wife, for the purpose of preventing her from obtaining the property covered by the mortgage; and,' in case of his decease, from securing her rights as widow. The master found upon the evidence, which is not reported, that the note was never delivered to the defendant and was found, after the death of the intestate, by the plaintiff in his safe deposit box in the bank; that the note and mortgage were given to the defendant “for the purpose of preventing himself from being harassed [112] in business, so far as possible, by any hostile legal action that might be taken for, or on behalf of, his wife.” We construe this language as a finding that the note and mortgage were given by the deceased to his mother for the purpose, and with the intention, of preventing his wife from reaching his property in any proceeding brought by her against him to secure her marital rights to support and maintenance. The conveyance by the husband so made is void as against her. Livermore v. Boutelle, 11 Gray, 217. Chase v. Chase, 105 Mass. 385. Brownell v. Briggs, 173 Mass. 529. Leyland v. Leyland, 186 Mass. 420, 422. Purdon v. Blinn, 192 Mass. 387. Shepherd v. Shepherd, 196 Mass. 179, 182. The rational inference from the finding is that the giving of the mortgage was merely colorable; that it was not a real conveyance, and never was intended by the parties to vest in the defendant any rights thereunder. The conclusion reached is not at variance with the decisions in Leonard v. Leonard, 181 Mass. 458, Kelley v. Snow, 185 Mass. 288, and Redman v. Churchill, 230 Mass. 415, 418. While a decree properly should have been entered cancelling the mortgage, yet inasmuch as there is no prayer in the bill to that effect, and the plaintiff has not appealed from the final decree, which directs that the sum of $103 and interest be paid by her to the defendant (being the balance due to her, as the master finds, on account of a loan of $180 made by her to the intestate), the defendant is not, therefore, aggrieved by the decree. The books of accounts, check books and the slips kept by the intestate in accordance with the so called “McCaskey System,” all introduced for the purpose of showing his business and financial condition, were admissible. The admission of fire insurance policies covering the property described in the mortgage, and which were not made payable to the defendant as mortgagee in case of loss, was not erroneous; the evidence had some tendency to show that the conveyance was voluntary and fraudulent. The evidence of the witness Ross, who was employed by the intestate as his bookkeeper, was properly admitted. There was no error in entering the interlocutory decree overruling the exceptions to the master’s report and confirming the report. Decree affirmed with costs.