Stitt v. Tribe

Wait, J. The respondent Tribe appeals from a decree of the Probate Court, which declared that certain certificates of stock, claimed to belong to her, were not a gift, but were assigned and delivered to her to hold for the benefit of the deceased assignor, and which ordered that they be transferred and delivered to the petitioner administrator. She contends that the court was in error in its findings of fact, and that certain evidence was admitted improperly. The petition alleged that the certificates were obtained by her fraud, duress and undue influence; that the assignor was incompetent mentally; and that it was not intended by the assignor that they should become her property, but that she should be merely a safe depository of them. After hearing, the judge found that there was no fraud, duress or undue influence. He did not pass finally on the question of mental capacity. The respondent has not been prejudiced by rulings upon evidence touching those allegations. We need not consider them. No good purpose would be served by extended discussion [206] of the evidence. Upon such an appeal this court will consider the evidence and form its own conclusion; but it will not overthrow the findings of the judge who saw and heard the witnesses unless satisfied that he was clearly wrong. Cook v. Mosher, 243 Mass. 149, 152. Howard v. Smith, 249 Mass. 522. We have considered the evidence reported, and discover no error in the finding that the certificates in question were placed with Mrs. Tribe as a depository, and never became her absolute property. We treat the exceptions to the rulings on evidence other than to the admission of testimony of W. S. Downey, Esquire, and of the unsigned document connected therewith as waived. There was nothing in them, and they properly were not argued in her brief. The document and portions of the testimony of W. S. Downey, Esquire, excepted to were admitted properly. They were competent on the issues then before the court of undue influence and of mental capacity of the deceased. No request to confine the application was made. The objection was general, and if the evidence was competent on any ground, an exception to its admission cannot be sustained. Randall v. Peerless Motor Car Co. 212 Mass. 352. As statements of a deceased person, they were admissible under G. L. c. 233, § 65. Their admission without restriction imports a finding by the court of the preliminary facts that they were made in good faith, before the commencement of the action, and of the personal knowledge of the declarant. Ferris v. Ray Taxi Service Co. 259 Mass. 401, 404 and cases cited. The intent of the assignor was material. Her statements and actions at any time were competent. Powell v. Powell, 260 Mass. 505, 509. See Davis v. H. S. & M. W. Snyder, Inc. 248 Mass. 387, 392. Even if statements made subsequent to the assignments could be held to be incompetent, when this evidence was admitted, it was an open question whether the assignment had been made before the statements. The petitioner contends that the assignments were later in time. The finding did not render it inadmissible. We find no error. Decree affirmed with costs.