Home JOSEPH HERWITZ vs. WILLIAM H. HERWITZ.

356 Mass. 734

December 23, 1969

By this bill in equity the plaintiff seeks to recover certain securities which he had transferred to the defendant, his son. The securities, it is alleged, were transferred to the son's name merely as matter of convenience and with no intention of making a gift. In his counterclaim the defendant asserts that the securities were transferred to him as a gift, and asks for a decree adjudicating that he is the owner and ordering the plaintiff, who is now in possession of the securities, to return them. The judge voluntarily made findings of the material facts. The evidence is reported. A detailed recital of the subsidiary findings would serve no useful purpose. The ultimate finding was as follows: "On August 1, 1967, the plaintiff . . . then in full possession of his faculties made and intended to make a gift of the securities in question in this litigation. His transfer of such securities to the defendant . . . on that date was not impressed with a trust of any kind nor did the defendant agree to return these securities on demand or to hold them as a straw." A decree was entered ordering that the plaintiff's bill be dismissed and that the plaintiff return the securities to the defendant. The plaintiff appealed. There was no error. Whether the plaintiff, in causing the securities to be transferred from his name to the name of his son, intended to make a gift was essentially a question of fact. The findings of the judge are to stand unless we are satisfied that they are plainly wrong. Willett v. Willett, 333 Mass. 323 , 324. We have examined the evidence with care and are satisfied that the findings of the judge were not plainly wrong; on the contrary, they were amply supported by the evidence.

Final decree affirmed with costs of appeal.

Home BUILDING INSPECTOR OF BURLINGTON & others vs. BOARD OF APPEALS OF BURLINGTON & another.

356 Mass. 734

December 23, 1969

Paul F. Johnston, building inspector of Burlington, and five inhabitants of the town by this bill under G. L. c. 40A, Section 21, and purportedly under c. 41, Section 81BB, each as amended, seek to have annulled a decision of the town board of appeals which reversed his order revoking a building permit. A Superior Court judge correctly dismissed the bill. A meager statement of agreed facts reveals no adequate basis for Johnston's action. A plan of land (the locus) was filed with the planning board in 1965 and with the building inspector in 1967. The agreed facts do not show this to have been a plan of a subdivision within G. L. c. 41, Section 81L (as amended through St. 1965, c. 61), even though in 1965 when the plan was filed the locus, with 191.27 feet frontage on Sears Street, was part of a larger tract in common ownership. It also is not established that the planning board, by its unanimous 1965 action, incorrectly determined that its approval under the Subdivision Control Law was not required or that it did not waive strict compliance with any applicable board regulation affecting the locus on which the town has now completed a town library. See G. L. c. 41,

Page 735

Sections 81M and 81R, each as amended; Lyman v. Planning Bd. of Winchester, 352 Mass. 209 , 213-214; Caruso v. Planning Bd. of Revere, 354 Mass. 569 , 572. There is no violation of the town zoning by-law. So far as this record shows, the balance of the original tract constitutes a lot as to which, under Section 81L, there may be filed a separate plan, also not constituting a subdivision.

Decree affirmed.