Home PETER ZARELLA vs. ALPHEUS ZARELLA, executor & trustee.

356 Mass. 735

December 23, 1969

The probate judge dismissed the appellant's petition to establish a resulting trust in certain real estate. The judge made no findings of fact. The evidence is reported. The rule of review stated in Marlowe v. O'Brien, 321 Mass. 384 , 386, governs. Concededly, the property had been purchased by the petitioner's mother with her own money and was standing in her name at the time of her death when by her will it was devised to another son for stated purposes. The testimony at best tended to show a general family understanding that the petitioner was to be permitted at some time to buy the property from his mother at the original purchase price. It fell far short, however, of requiring a finding of a resulting trust in his favor.

Decree affirmed.

Home CAVALLARO REALTY, INC. vs. TREASURER OF BOSTON REDEVELOPMENT AUTHORITY (and a companion case).

356 Mass. 735

December 23, 1969

This is a petition for a writ of mandamus to require the respondent treasurer to pay the balance of a judgment due on account of property taken by the Authority. A companion case is a bill in equity by the treasurer against Cavallaro Realty, Inc. and A. Cavallaro Company, Inc. to reform an instrument allegedly providing for payment for use and occupation of the property. This amount is unliquidated. A single justice ordered a writ of mandamus to issue for the full amount, and entered a decree dismissing the bill for reformation. The treasurer appealed. There have been no findings of fact and no effort to obtain any. The cases may have been tried on statements of counsel. In any event no evidence appears to have been offered. It is impossible on these records to determine the questions argued on behalf of the treasurer. In the mandamus case the order is affirmed. In the equity case, the decree is affirmed, with costs of appeal.

So ordered.

Home SARAH SHACK vs. ARTHUR SHACK & others, executors, & others.

356 Mass. 735

January 2, 1970

The will of Israel Shack (testator) bequeathed sixty-one shares of the common stock of Shack's, Inc. to three trustees with directions to distribute the shares to the testator's three sons, Arthur, Philip and Albert, "if, within ninety (90) days after my decease . . . said sons . . . have established an assured lifetime income of One Hundred Seventy-Five Dollars ($175) per week for my daughter, Sarah." The will further provided that "such lifetime income may be assured for my daughter, Sarah, by the purchase of an annuity, by the execution of an employment contract with Shack's Inc. or in any other manner that such sons and the Trustees deem suitable" (emphasis supplied). Within ninety days after the testator's death, the three sons individually,

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the three trustees and Shack's, Inc. executed and sent to Sarah Shack a contract by which she would be employed by the corporation as its office manager "during the period of her lifetime," and would be paid therefor "the sum of One Hundred Seventy-Five Dollars . . . each and every week so long as she shall live." The contract also provided that if "Sarah Shack shall at any time desire to cease her employment as active office manager of the Corporation, she may do so and shall thereafter and so long as she is able, be permitted to serve as a consulting office manager. In the event that Sarah Shack shall, because of disability or for any other reason, be prevented from or cease to continue in the active or consultative position of office manager, the salary which she is entitled to receive under . . . this agreement . . . shall continue without any diminution whatsoever for so long as she shall live." The three brothers jointly and severally obligated themselves to make the weekly payments to Sarah, "in the event that the Corporation or any successor of its business, shall for any reason whatsoever cease to pay Sarah Shack." The personal obligation of each brother for such weekly payments terminated at his death; but it continued as to the surviving brothers. Sarah Shack brought a petition in equity for a declaratory decree on the issue whether the contract of employment offered to her constituted "an assured lifetime income for . . . [her] of not less than One Hundred Seventy-Five Dollars . . . per week" under item VII, D, of the will. The case was heard and argued in the Probate Court, no evidence being offered. The trial judge then entered a decree that the employment contract "is satisfactory to the trustees under said will and that the respondents have thereby fulfilled their obligation in accordance with the directions contained in Clause 7 of said will." The employment contract offered to Sarah Shack not only complied with, but in some respects exceeded, the requirements of the will. There was no error. It is unnecessary to consider the respondents' claim that the petitioner failed to comply with Rule 4 of the Probate Court and with S. J. C. Rule 1:04, 351 Mass. 734 , in connection with her appeal.

Decree affirmed.