Order dismissing report reversed. Case to stand for a new trial. This is an action under G. L. c. 229, Section 2 (St. 1958, c. 238, Section 1), for the wrongful death of Henry S. Novick, a guest occupant in a car driven by the defendant's decedent. The plaintiff is the duly appointed administratrix of the estate of Henry S. Novick and gave bond on September 30, 1959. The present writ is dated October 23, 1961. The Appellate Division dismissed the report of the judge who found for the defendant. All facts relevant to the instant case appear in Noon v. Beford, ante, 537, decided this day, an action which arose out of the same accident. The decision of the case is governed by what was said there.
Decree reversed. In the Superior Court the judge, acting on an appeal purportedly brought under G. L. c. 40A, Section 21, annulled the decision of the board of appeals of Taunton which had affirmed the decision of the city's superintendent of buildings denying to the plaintiffs a permit to replace twenty-two deteriorated poultry shelters with two new structures for 3,000 chickens. The locus is in a district zoned for residences. Apart from other defects in the plaintiffs' case, the judge on the record had no jurisdiction to act. The defendant board of appeals was established under the city's building code. There was no showing that the city had provided for a zoning board of appeals under G. L. c. 40A, Section 14. Jurisdiction in the Superior Court under Section 21 is confined to appeals under the Zoning Enabling Act. Rice v. Board of Appeals of Dennis, 342 Mass. 499 , 502.
This is a petition in equity in the Probate Court to determine the title to three paid-up share accounts and a savings account in the Meeting House Hill Cooperative Bank in Dorchester. The present appeal by the respondent John J. Dooley challenges that portion of the decree which awarded the proceeds ($7,000) of the paid-up share account represented by certificate No. 5036 to the petitioner as special administratrix of the estate of William F. Dooley. John further challenges the decree in so far as it awards to the petitioner (in addition to a counsel fee of $1,200 to be paid out of the estate) the sum of $345.50 which is to be paid by him. The judge made findings of material facts. The evidence is not reported. Concerning certificate No. 5036 the judge found that, although the intestate William F. Dooley had caused the certificate to be made out in his name as trustee for John and John was entrusted with the possession of this certificate for a brief period, "it was not
William's intention at any time with respect to [the] certificate . . . to make a gift or create a trust for the benefit of John in the fund represented by that certificate." This finding is not shown to be inconsistent with other findings and must be accepted as true (Lucier v. Williams, 323 Mass. 458 , 461); it furnishes adequate support for the decree, which determined that the proceeds of the certificate belonged to William's estate. Reynolds v. Reynolds, 325 Mass. 257 , 261. It was within the discretion of the judge to award the payment of counsel fees to the petitioner in the sum of $345.50 and to order it to be paid out of John's distributive share of the estate. See Coles v. Goldie, 341 Mass. 183 , 187; Hurley v. Noone, 347 Mass. 182 , 190. The decree is affirmed. Costs and expenses of appeal are to be in the discretion of the Probate Court.