HONOROTA NOVICK, administratrix, vs. LEONARD F. BEFORD, administrator.

MARY M. FITZSIMMONS, special administratrix, vs. JOHN J. DOOLEY & others.

349 Mass. 769

October 27, 1965

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

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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.