Equity Pleading and Practice, Master's report, Appeal. Corporation, Transfer of shares. Evidence, Presumptions and burden of proof.
In this suit in equity by an administrator against a corporation and one of its shareholders, in which the plaintiff alleged that his intestate at the time of his death had owned shares of stock in a corporation which had been absorbed by the defendant corporation and that in a reorganization of the defendant corporation his rights had been given wrongfully to the individual defendant, a master to whom the case was referred found that, although a certificate for the shares in question, indorsed in blank by the person to whom they originally were issued, was found among the effects of the plaintiff's intestate after his death, from other facts it appeared that another person had owned the shares and had sold them to the individual defendant; and an appeal by the plaintiff from a decree overruling exceptions to the master's report was dismissed, the evidence not having been reported by the master and none of his findings necessarily being inconsistent with subsidiary findings reported by him.
In a suit in equity by an administrator seeking to establish his rights to certain shares of the capital stock of a corporation which he alleged were owned by the intestate at the time of his death, where the title to the shares is in dispute, evidence introduced by the defendant tending to show that, two years after the plaintiff's intestate practically had retired from business, he filed a voluntary petition in bankruptcy and that in the sworn schedules of his assets the shares in question were not mentioned, is competent and material.
SHELDON, J.
The decree appealed from was warranted upon the master's report. All but the first of the plaintiff's exceptions to that report rest simply upon the claim that the findings excepted to were unwarranted. But none of these findings are necessarily inconsistent with the subsidiary findings reported, and the evidence is not before us. It follows that we cannot sustain these exceptions. Freeland v. Wright, 154 Mass. 492. Crosier v. Kellogg, ante, 181.
As to the first exception, if we assume that the competency of the evidence can now be considered, yet the plaintiff has not directly argued that it was not competent for the defendant to prove and for the master to find conduct and statements of the plaintiff's intestate inconsistent with the claim that the intestate was the owner of the shares of stock in question. Manifestly this was competent and material.
The decree must be affirmed with double costs.
So ordered.