Gaunt v. Burroughs

83 N.E.2d 172, 323 Mass. 757, 1948 Mass. LEXIS 649

Opinion

Decree affirmed. This petition to the Probate Court alleges, in substance, that in the assets of the estate of Harry E. Burroughs is the sum of 8800, the property of the petitioner, which is being withheld from the petitioner without right; and that this money “was given in trust to the defendant for the petitioner” by one McCarthy, “trustee at the time.” The prayers are that the court find that said sum is the property of the petitioner, and for further relief. The answer, in substance, denies the allegations of the petition and sets up the defence of res judicata. The Probate Court, “after a full hearing,” dismissed the petition, and the petitioner appeals. The record discloses no express findings of fact by the judge, and the evidence is not reported. Obviously there is nothing in the record to show any error in the decree. Milne v. Walsh, 285 Mass. 151, 153. The petitioner has filed a “brief” with us including certain statements of facts not contained in the record. Appealed cases cannot be retried before us upon assertions in briefs. G. L. (Ter. Ed.) c. 215, § 12. G. L. (Ter. Ed.) c. 214, § 24, as amended by St. 1947, c. 365, § 1. Hale v. Blanchard, 242 Mass. 262, 264-265. Carilli v. Hersey, 299 Mass. 139, 145.