FRANK C. HURLEY, administrator, vs. MARGARET M. NOONE & another (and a companion case).

CUTTER, J. An equity petition by Hurley, administrator of the estate of his estranged wife, Beatrice, seeks to establish as against Beatrice's sister, Margaret M. Noone, the estate's interest in the property in three safe deposit boxes (nos. 1494, 1589, and 2107) and control of the contents. Relief against the bank owning the safe deposit boxes was also sought. Beatrice's heirs were Noone and John F. Barry, a nephew. Beatrice died March 24, 1960.

On May 9, 1960, a probate judge permitted inspection of at least boxes nos. 1494 and 2107. The contents were then listed and described by Mr. Wilson, the appraiser appointed by the Probate Court. Box no. 1589 had been opened by Noone on April 7, 1960. Various items were then removed by her from that box.

Barry learned of the contents of box no. 2107. Thereupon, he filed a petition in equity alleging that all the contents of box no. 2107 were his property or that of Noone, in part placed there for his benefit and marked as his.

A decree was entered on the administrator's petition deciding that (1) from the cash contents of box no. 2107, (a) $1,370 belonged to Beatrice's estate, (b) $7,537 belonged to Barry, and (c) $17,994, plus $300 face amount of United States war bonds, belonged to Noone; (2) the contents of box no. 1494 belonged to Beatrice's estate and were to be paid to the estate with interest (as stated below) from May 18, 1960; (3) the contents of box no. 1589 belonged to Noone; (4) the sum of $2,365.02 was to be paid, toward fees and expenses, to the administrator's attorneys, to be prorated between the sums of $1,370 and $17,994 (payable as above set forth) from box no. 2107; and (5) the interest on the contents of box no. 1494 was to be paid to the estate from the $17,994 allocated to Noone.

On Barry's petition, a decree was entered (1) that he was entitled to $900 face amount of war bonds (found in box no. 2107) in which he was named as payee and to $300 face amount of such bonds payable to him or Beatrice; (2) that he was entitled to $7,537 of the cash contents of box no. 2107; and (3) that, from this sum of $7,537, there must be

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paid to the administrator's attorneys $522.69 toward costs and expenses.

Noone and the administrator each appealed from the decree on the administrator's petition. The administrator and Barry each appealed from the decree on Barry's petition. The probate judge filed a report of material facts "limited to . . . two narrow issues designated," viz. (a) the authority under G. L. c. 215, Section 45, to direct payment out of the disputed funds in each proceeding, and (b) "the reasonableness of the amount specified in each decree." See fn. 8, infra.

As to the contents of box no. 2107, [Note 1] the judge made the following principal findings. Box no. 2107 was first rented on March 9, 1953, in Beatrice's name. Noone claims that on that day, in Beatrice's presence, she transferred bundles of cash into box no. 2107 from box no. 1589, together with most of a total of $11,322.85 (see fn. 4, infra) withdrawn by her in cash from four savings banks. [Note 2] Noone in testimony had estimated that there was $38,000 in cash in the box. The cash contents proved to be $26,801. [Note 3]

The judge stated that "[n]umerous financial transactions on the part of . . . [Noone] were highly unusual," as was "testimony by the 30-year [old] taxicab driver . . . Barry that not only the U.S. Bonds, but substantial sums of cash . . . allegedly held for him by his aunt as `[t]rustee,' represented

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. . . presents to and savings by him . . . turned over . . . to . . . Noone to keep for him, without his ever knowing, -- down to the . . . death of Beatrice . . . either the amount . . . place or method of deposit." The judge summarized his conclusions on the merits of the petition by stating (1) that "[d]espite [Noone's] financial transactions and conduct . . . which amply justified [the administrator's] institution of equity proceedings . . . and which I find replete with suspicious circumstances . . . [the administrator] failed to sustain the necessary burden of proof" and (2) that "[d]espite evidence of most unusual transactions, as well as evasive and contradictory testimony," Barry "sustained the burden of proof entitling him to possession of certain small U.S. bonds bearing his name, and also substantial sums of cash in a package bearing his name." The conclusions are discussed more fully below.

1. The contents of box no. 2107 included at least $26,801 in cash (see fn. 3). The appraiser's report shows that among the bundles, packages, or envelopes of currency in box no. 2107, were four separate bundles of, or envelopes containing, currency in amounts almost precisely equal to withdrawals in cash from savings bank accounts in Noone's name, made on March 4 and 9, 1953. [Note 4] Bank records show that the box was rented and signed for by Beatrice on March 9, 1953. She then gave a written receipt for two keys. Noone testified, however, that she, and not Beatrice, retained the keys.

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Noone gave testimony that she put about $38,000 in box no. 2107 in March of 1953. Some of this money she said came from box no. 1589 (to which both Noone and Beatrice had access, fn. 1) in which she theretofore had held funds. She claimed to have placed box no. 2107 in Beatrice's name alone because of fears that various persons then making claims against her would attach assets standing in her own name (see e.g. Davis v. Noone, 341 Mass. 488). Noone also claimed at later stages of her testimony that this was done after consultation with the vault officer at the bank, although his and her earlier testimony did not suggest this.

Records of access to boxes in this bank prior to January, 1954, had been destroyed and were not available at the time of trial. There was no record of any access to box no. 2107 from January 1, 1954, up to the date of trial, except the visit on May 17, 1960, when the administrator (accompanied by counsel) gained admission so that Mr. Wilson could make his inventory. The rent for box no. 2107 ($6.60 per year) was billed to Beatrice and there was evidence that it was paid in cash. Noone testified that she put her sister in funds to pay the box rent.

The transcript of testimony is voluminous and confusing. Noone's testimony contained contradictions and in places was somewhat inconsistent with the claims originally made in her behalf. Nevertheless, in the evidence, including her own testimony, if believed, there was justification for the findings made by the trial judge.

The correlation between the amounts withdrawn from savings banks in early March, 1953, and certain of the bundles found in box no. 2107 (fn. 3, supra), first rented on March 9, 1953, is persuasive indication that at least these funds belonged to Noone. There was evidence from which the judge could have found that Noone's past real estate activities had enabled her to save money at least equal to the other amounts awarded to her from the currency in box no. 2107.

The registrations of the various savings bonds (in the names of Barry or of Barry or Beatrice) showed their ownership.

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The judge also could reasonably conclude that Barry owned at least $7,537 of currency in the box (a) on the basis of Barry's own testimony, and (b) because of the manner in which certain currency was placed in the box. [Note 5]

If one deducts from the $26,801 of currency found in the box (a) $11,321 (equal to Noone's 1953 savings bank withdrawals except for fractions of a dollar withdrawn in coins) and (b) $7,537 awarded to Barry, there is a balance of $7,943 of unallocated cash contents. For reasons not wholly clear from the statement of material facts, the judge concluded that one bundle of bills (in a total amount of $1,370) belonged to Beatrice's estate and that the balance ($6,573) of the currency belonged to Noone, thus giving her total cash of $17,894. [Note 6]

We cannot say that the $6,573 awarded to Noone was not justified by Noone's testimony that in March, 1953, she had placed in box no. 2107 substantial cash formerly in box no. 1589, in addition to her then recent savings bank withdrawals.

The award of $1,370 to the estate was justified by the undisputed evidence that box no. 2107 stood in Beatrice's name, and that she (or, in her behalf, the bank [Note 7] owning the safe deposit boxes) had possession of this currency.

Possession of property, with the exercise of the rights of ownership, is evidence of title. See United Shoe Mach. Co. v. Bresnahan Shoe Mach. Co. 197 Mass. 206, 215-216 ("Ordinarily it makes a prima facie case . . . of title by the

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possessor."); Silver v. Roberts Garage, Inc. 240 Mass. 571, 573; Simons v. Northeastern Fin. Corp. 271 Mass. 285, 291. See also Magee v. Scott, 9 Cush. 148, 150-151. Cf. Kobrosky v. Crystal, 332 Mass. 452, 460-461. Possession frequently is especially strong evidence of title in the case of currency. See Wyer v. Dorchester & Milton Bank, 11 Cush, 51, 53-55, which, as to a stolen bank note, stated that the burden was not on the holder "to show how he acquired the bill . . . but . . . on the defendants [the issuing bank] to show" that the holder "received it . . . [in] such circumstances as to prevent maintenance of" the action. See also Massachusetts Natl. Bank v. Snow, 187 Mass. 159, 163. Cf. Scollans v. E. H. Rollins & Sons, 179 Mass. 346, 352-353; Elbar Realty, Inc. v. City Bank & Trust Co. 342 Mass. 262, 268 (government bearer bonds). Proof of Beatrice's possession of the currency in the box (or of the bank's possession as her bailee for safekeeping) thus established a prima facie case of her ownership. It was, of course, open to Noone and Barry to offer evidence (see Bone v. Holmes, 195 Mass. 495, 505-506) to control the evidence of possession produced by the administrator, and, when that evidence was offered, "the whole evidence . . . [was to be] considered together to determine the true title." See the United Shoe Mach. Co. case, supra, 197 Mass. 206, 216. Noone and Barry thus had the burden of going forward with, and convincing the judge of the truth of, testimony to control the administrator's prima facie case.

Because the evidence consists largely of oral testimony, due weight is to be given to the findings of the trial judge, who had an opportunity to gauge the credibility of the witnesses. See Linse v. O'Meara, 338, 345; Murach v. Massachusetts Bonding & Ins. Co. 339 Mass. 184, 188; Liberty Mut. Ins. Co. v. A. C. Martinelli Rogers Plastic Corp. 344 Mass. 498, 501-502. His findings are not plainly wrong.

The administrator calls attention to the judge's ambiguous statement that he "found that . . . [the administrator] failed to sustain the necessary burden of proof, and therefore

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entered" a decree for Noone "except as to . . . $1370 as to which [Noone's] testimony," that this money was placed in the box in 1953, "could not be reconciled with her own testimony" about withdrawing the cash from a savings account in August, 1956. The administrator contends that this statement shows the judge to have had an erroneous view concerning what burden rested upon Noone and the estate, respectively, to prove facts supporting their contentions.

The statement occurs in a report [Note 8] of the facts material to the issues concerning costs and expenses and in a paragraph merely summarizing the action taken upon the merits of the administrator's petition. In the immediately following paragraph, the judge similarly summarized his action on Barry's petition and said that he "was constrained to find that . . . Barry sustained the burden of proof" concerning the bonds and cash awarded to him.

We do not regard either of these statements as intended to be a ruling that the administrator had not made out a prima facie case. The statement with respect to Barry's petition shows that the judge was convinced by the testimony supporting Barry's contentions. Noone's position rested on essentially the same evidence. The judge, by failing to accept her testimony concerning the $1,370, shows in effect that he has considered and been persuaded by the evidence supporting the award of other amounts to her. We view the two statements concerning "burden of proof," together and in context, as indicating merely that the judge had believed some parts of the evidence supporting Noone's and Barry's position [Note 9] and had concluded that it was more

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significant than the possession evidence upon which the administrator necessarily relied.

2. In any event the decree as to costs and counsel fees was justified. The administrator found himself in possession of a substantial fund. Any confusion concerning ownership of that fund was caused (if her testimony was true) by Noone's own equivocal conduct in placing her money in a box rented by Beatrice. It was the administrator's plain duty to obtain an adjudication of title to cash assets, which prima facie belonged to Beatrice's estate and which, even if the cash belonged to Noone and Barry, the administrator held in a fiduciary capacity. The judge justifiably concluded that, regardless of the outcome, the expense of a court determination should rest, principally at least, on Noone and Barry. See G. L. c. 215, Section 45, as amended through St. 1931, c. 120, Section 1 (and see Section 39A, as amended through St. 1951, c. 80, and Section 39B, inserted by St. 1951, c. 312); Perry v. Perry, 339 Mass. 470, 483-486; Coles v. Goldie, 341 Mass. 183, 187; Newhall, Settlement of Estates (4th ed.), Sections 32, 33. See also Commissioner of Ins. v. Massachusetts Acc. Co. 318 Mass. 238, 241-242, fn. 1; New England Trust Co. v. Triggs, 339 Mass. 453, 457; Golden v. Taft, 344 Mass. 152, 156, and authorities cited. Cf. Day Trust Co. v. Malden Sav. Bank, 328 Mass. 576, 580; Mulcahy v. Boynton, 341 Mass. 171, 178; Lane v. Cronin, 345 Mass. 52, 53-54.

Decrees affirmed.