JANE A. ECKLUND, administratrix, vs. EINAR V. ECKLUND & others.
Probate Court, Appeal, Findings by judge.
While an appeal from a final decree in a petition in equity in a probate court, where the entire evidence is reported, brings before this court questions of fact as well as of law, and it is the duty of this court to examine the evidence and decide the case upon its judgment, findings by the judge of probate based upon oral testimony will not be reversed unless plainly wrong.
A finding and decree for the petitioner in a petition in equity in a probate court by an administrator to require the brother of the intestate to deliver to the petitioner certain sums of money, placed in the possession of the respondent to be held for the intestate as owner, where the entire evidence was reported and was principally oral, were held, on an appeal by the respondent, not only not to have been plainly wrong, but to have been right; and the decree therefore was affirmed.
PETITION in equity, filed in the Probate Court for the county of Essex on May 27, 1932, and described in the Opinion.
The petition was heard by Dow, J., the evidence being reported. Practically all of the evidence was oral. From a decree entered for the petitioner, the respondents Ecklund appealed.
The case was submitted on briefs.
J. J. Bruin, for the respondents Ecklund.
A. K. Cohen, M. E. Bernkopf, & S. A. Goodman, for the petitioner.
RUGG, C.J. This petition in equity is brought by the administratrix of the estate of Peter A. Ecklund praying that certain sums of money, deposited by him during his life with his brother and standing in the names of that brother and his wife in savings banks, be declared to be property of the estate and be ordered paid to the petitioner. That brother, his wife, and the savings banks are joined as respondents. The probate judge after making preliminary
Page 518
findings concluded with the decisive finding that the money was placed by the intestate in the hands of his brother not as a gift but to hold for his benefit as owner. A decree was entered in accordance with the findings directing the transfer of the deposits in the several savings banks to the petitioner. The brother of the intestate and his wife have appealed. The entire evidence is reported.
The familiar rule is that an appeal in those circumstances brings before this court questions of fact as well as of law; and although it is the duty of this court to examine the evidence and decide the case upon its judgment, a decision based upon oral testimony will not be reversed unless plainly wrong.
This record has been carefully examined. No point of law is raised on it. The question determined was purely one of fact, depending upon the credibility of witnesses and the weighing of evidence. The decision was not plainly wrong but appears to have been right. Cases of this kind depend upon their special circumstances, can be of no value as precedents and the evidence need not be stated or discussed. Reed v. Reed, 114 Mass. 372. Lincoln v. Eaton, 132 Mass. 63, 68. Dickinson v. Todd, 172 Mass. 183. Norcross v. Mahan, 283 Mass. 403.
Decree affirmed.