Home NATHAN SCHWARTZ vs. IDA VALINSKY (and a companion case). [Note 1]

1 Mass. App. Ct. 806

February 7, 1973

These are actions in tort for alienation of affections brought against the mother and sister of the plaintiff's wife. The cases were consolidated for trial. When they were reached for trial and before a jury was impaneled, in the course of a conference between the court and counsel at which the plaintiff set out his proposed opening, the court, on the basis of the declarations, the specifications, and the proposed opening, ruled (in addition to other rulings) that the actions were barred by the statute of limitations. By stipulation it was agreed that it would be unnecessary to go through the procedural step of impaneling the jury and directing it to return verdicts for the defendants. Thereupon, the defendants made, and the judge granted, an oral motion for directed verdicts. The plaintiff's sole contention in this respect in his bill of exceptions, brief, and argument is that the statute of limitations affecting actions of tort is not applicable. The plaintiff's answers to specifications in each case clearly place the alleged causes of action beyond the two-year period provided in G. L. c. 260, Section 2A. Either unmindful of or forgetful of the writs brought by him which describe the actions as "tort", the plaintiff argues that these are actions of contract and subject to the six-year limitation of G. L. c. 260, Section 2, rather than Section 2A. This position is wholly without merit. Interference with the marriage relationship is considered by case and textbook authority as a cause of action in tort. White v. Thomson, 324 Mass. 140, 142. Sherry v. Moore, 258 Mass. 420. Restatement: Torts Section 683. Prosser, Torts (4th ed.) Section 124. The trial judge's ruling that the actions were barred by G. L. c. 260, Section 2A, was proper. In view of our decision we need not review other rulings.

Exceptions overruled in each case.


[Note 1] By the same plaintiff against Lillian Valinsky.

Home LOUIS FLAUGH, administrator, vs. FORREST C. PRATT & others.

1 Mass. App. Ct. 806

February 16, 1973

This bill is brought to determine the interests of the

Page 807

plaintiff's intestate in three bank accounts. The plaintiff has appealed from a final decree in favor of the defendants. The trial judge was right in holding that the plaintiff has no interest in the accounts. The donor of the accounts was Walter G. Pratt (Walter), the father of the intestate, Marion E. Flaugh (Marion), and of the defendant Forrest C. Pratt (Forrest). Walter opened the first account as follows: "Walter G. Pratt and Forrest C. Pratt and Marion E. Flaugh, as Joint Tenants with Right of Survivorship and not as Tenants in Common and not as Tenants by Entirety"; the second account as "Walter G. Pratt or Forrest C. Pratt or Marion E. Flaugh -- Subject to Withdrawal of Whole or Part by Either, or the Survivor of Either"; and the third account as "Walter G. Pratt or Marion E. Flaugh or Forrest C. Pratt." Walter died; then Marion died. The evidence amply supports the judge's finding that, when he established these accounts, Walter intended to give a present interest in them to Forrest and Marion. Kittredge v. Manning, 317 Mass. 689. DePasqua v. Bergstedt, 355 Mass. 734. It is settled that a transaction of this kind is to be "taken at its face value unless the evidence shows that it was not so intended." Kittredge v. Manning, supra, at 692. Malone v. Walsh, 315 Mass. 484, 491. The evidence of what transpired among Walter and his children during his lifetime and after his death between the children themselves with respect to these accounts simply reenforces the conclusion that it was his intention at the outset to give them a present interest in the accounts. The first account established a joint tenancy among father, son and daughter; and Forrest as the survivor became the ultimate owner. Forrest and Marion became "quasi joint owners" with their father of the second and third accounts; and Forrest, as survivor, became entitled to those accounts or their proceeds. Marble v. Treasurer & Receiver General, 245 Mass. 504, 507-508. The final decree, modified by striking out the paragraph numbered three which dismissed the petition for declaratory relief, is affirmed.

So ordered.