3 Mass. App. Ct. 705

February 3, 1975

Neither of the exceptions claimed by the respondents appears to have been intended (nor was either sufficient) to cast doubt on the validity of the judge's finding, which is dispositive of the respondents' claim (s) of "prescriptive rights" or of "rights of prescription," that "they [the respondents] have not used the pond uninterruptedly for over twenty years." See G. L. c. 187, Section 2. No question of "dedication of rights to the general public" was raised by or open under the pleadings.

Exceptions overruled.

Home CARL A. NIGRO vs. SAMUEL J. NIGRO & another. [Note 1]

3 Mass. App. Ct. 705

February 5, 1975

This is an appeal from an interlocutory decree confirming a master's report and from a final decree dismissing the plaintiff's bill. The plaintiff (Carl), the owner of 45 shares of stock of the defendant corporation seeks to impose a resulting trust in his favor upon five of the remaining 55 outstanding shares held by the individual defendant (Samuel), Carl's brother. Carl's claim to a resulting trust in five of the shares issued to Samuel is based upon the assumption that, when their partnership was incorporated, it was understood that the brothers were to hold equal shares in the corporation. Where, as here, the master has set forth all the subsidiary findings upon which he based his conclusions, "[i]t is the duty of the trial court and of this court to draw its own inferences and to reach its own conclusions from the subsidiary findings of the master." Certified Pest Control Co. Inc. v. Kuiper, 1 Mass. App. Ct. 201 , 204 (1973). Corrigan v. O'Brien, 353 Mass. 341 , 345-346 (1967). O'Brien v. Dwight, 363 Mass. 256 , 281 (1973). It is readily inferable from the master's findings that it was not intended that the shares should issue to the brothers in equal amounts and that Carl, as manifested by his attitude toward the shares in the several years following incorporation, had acquiesced in the unequal division of the shares. It is significant that five years after the formation of the corporation, the brothers organized a corporate affiliate in which the same distribution of shares was made with Carl's knowledge and intent. The plaintiff's reliance upon Hanrihan v. Hanrihan, 342 Mass. 559 (1961), and Radford v. Lovett, 1 Mass. App. Ct. 874 (1974), does not support his argument for a resulting trust in this case. The denials of

Page 706

Carl's motions to recommit the master's report and to expunge certain of his general findings do not require a response as they have not been argued in his brief. O'Brien v. Dwight, supra. The interlocutory decree confirming the master's report, and the final decree dismissing the bill, are affirmed.

So ordered.


[Note 1] Dudley Fuel Company, Inc.