CAROLINE M. LINDSEY, administratrix, vs. LEWIS J. BIRD

RUGG, J. This is a bill in equity brought by the administratrix of the estate, who is also the widow, of Henry Lindsey, to recover from the defendant certain moneys collected by him on the order of Lindsey during his life, this property being practically all which the deceased possessed. The judge of the Superior Court who heard the case filed a "memorandum of findings," which is a brief extract of certain material evidence and a statement of his findings of fact. This was made voluntarily without the request of either party. Such a memorandum is a part of the record and has the same effect as a report made under R. L. c. 159, § 23. Cohen v. Nagle, 190 Mass. 4. The voluminous oral testimony given before the trial court was reported by a commissioner and forms a part of the record. Certain documentary evidence is not printed, and many letters from the plaintiff's intestate to the defendant, the contents of which are not stated, were introduced in evidence, but do not form a part of the record. In the Superior Court a decree was entered dismissing the bill and ordering the defendant to pay the plaintiff her taxable costs and the defendant to take no costs. The plaintiff appealed from this decree.

In Colbert v. Moore, 185 Mass. 227, the court speaking through Lathrop, J., said : "The appeal brings before the court questions of fact as well as questions of law, and it is the duty of the court to examine the evidence, and to decide the case according to its judgment, giving due weight to the finding of the judge. . . . It is however true that upon an appeal from a decree of a judge in equity upon questions of fact, arising on oral testimony heard before him, his decision will not be reversed unless it is plainly wrong."

It was admitted that the defendant had received $6,173.70 belonging to the plaintiff's intestate upon his order from the estate of one Maria M. Lindsey, and that the defendant had properly paid out $2,006.02 from this fund on said Henry Lindsey's account. The plaintiff asserted that the transfer of this money by her intestate to the defendant was void because of lack of mental capacity in the deceased, and of undue influence exerted upon him by the defendant, and that the defendant received the money upon an express or constructive or implied trust, the nature of which was not clearly stated. These allega-

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tions were denied by the defendant, who asserted that he had received the money upon the agreement and understanding that he should hold and care for it, and pay therefrom any sums required for the support of the plaintiff's intestate, or which said intestate might demand, and that upon Henry Lindsey's death any sum remaining in the hands of the defendant should become his property. The judge found that the agreement was in substance as the defendant contended, that it was not void by reason of any mental incapacity on the part of the plaintiffs intestate, that it was not entered into through undue influence of the defendant, and that it was valid and binding.

We have examined the evidence carefully, but it is not necessary to state it in detail. It is somewhat conflicting, and would warrant a finding in behalf of either party, the conclusion to be reached depending in large measure on what credence is given to the testimony of the defendant. While there are many circumstances connected with the transaction and some misleading statements made by the defendant concerning it at various times, which cast a suspicion upon his conduct and his honesty of purpose, it cannot be said on the whole that the finding was plainly wrong or that it is without justification in the evidence. The witnesses were before the judge who made the findings, and he was able to decide, from their appearance and actions in testifying, as to their truthfulness with a greater probability of being right than any one can from a mere reading of their statements in print. Moreover, the letters of the plaintiff's intestate and other documentary evidence, which were in evidence but which are not before us, may have been very material in passing upon the issues raised.

There was no illegality in the agreement made between the defendant and the plaintiff's intestate. The latter had the absolute control of his property and, so far as the plaintiff's present rights are concerned, might have given it away during his lifetime upon such terms as he pleased.

Decree affirmed.

G. F. Williams, for the plaintiff, submitted a brief.

A. J. Jennings, for the defendant.