CROSIER v. KELLOGG

Equity Pleading and Practice, Master's report. Deed. Fraud. In a suit in equity, where the case is referred to a master under an order of court which does not require him to report the evidence but only to report his findings with such facts and questions of law as either party may request, the master's findings of fact upon unreported evidence cannot be revised upon exceptions taken to his report.

In a suit in equity a motion to recommit a master's report with an order to report the evidence upon which certain findings of fact made by the master were based is addressed to the sound discretion of the trial judge.

In a suit in equity by a man and wife of advanced years to set aside a deed of their homestead made by them in consideration of love and affection, with the reservation of a right of occupation during their joint lives, where the bill alleges that the execution of the deed in the form in which it was delivered was procured by the fraud and undue influence of the defendant and that at the time of its execution the man plaintiff had not sufficient mental capacity to make the conveyance, the issues raised by these allegations are questions of fact, on which the findings of a master on unreported evidence, that the essential allegations of the bill have not been established, will not be revised, unless upon his recital of the circumstances under which the deed was executed and delivered his conclusion is shown to be plainly wrong, which here was not the case.

BRALEY, J.

The order of reference did not require the master to report the evidence, but only such facts and questions of law as either party might request, and his findings of fact upon unreported evidence cannot be reviewed or revised on the exceptions taken by the plaintiffs to his report. East Tennessee Land Co. v. Leeson, 183 Mass. 37. Sawyer v. Commonwealth, 185 Mass. 356, 359. Taber v. Breck, 192 Mass. 355. Kennedy v. Welch, 196 Mass. 592, 594.

The motion to recommit, and that the evidence upon which the findings rested be reported, was addressed to the sound discretion of the trial judge, and nothing appears in the record to indicate that the denial of the motion was wrong. Henderson v. Foster, 182 Mass. 447. Duffy v. Hogan, 203 Mass. 297.

But, if the interlocutory decree should not be reversed, the plaintiffs contend that upon the findings they are entitled to a decree. The substantive issues raised by the pleadings, whether through the fraud and undue influence of the defendant Joseph M. Kellogg, practised upon the plaintiff James Crosier, the deed was procured in the form in which it was delivered, and whether at the time of its execution James Crosier had sufficient mental capacity to make the conveyance, were questions of fact. Woodbury v. Woodbury, 141 Mass. 329. Reed v. Mattapan Deposit Trust Co. 198 Mass. 306, 314. If the advanced age of the plaintiffs and the confidence reposed by them in the principal defendant were important facts for the consideration of the master, we cannot say upon his recital of the circumstances which led to the execution and delivery of the deed conveying their homestead upon a meritorious consideration, with the reservation of a life estate for their joint lives, that his conclusion that the essential allegations of the bill as amended had not been established, was plainly wrong.

Decree affirmed.