Powers v. Provident Institution for Savings

122 Mass. 443, 1877 Mass. LEXIS 157

Opinion

Gray, C. J.

These cases, which have been submitted together on the briefs of counsel, without oral argument, are rather statements of evidence than statements of facts. In each case, whether there was any trust, and, if so, what was its nature, are facts which may materially affect the right of the administrator to maintain the action; and yet they are not agreed in the case stated, and do not appear to have been found or considered by the court below. If we should decide the cases upon the records as they stand, we should be obliged to take all inferences of fact in favor of the conclusions of that court, even if the result should be to affirm the judgment for the plaintiff in the one case, and for the defendant in the other. West v. Platt, 120 Mass. 421. As we cannot believe that the cases were framed or submitted with that understanding, the safer course appears to us to be to discharge the statements of facts, and allow the cases to stand for further proceedings in the Superior Court. Shearer v. Jewett, 14 Pick. 232, 236. Gregory v. Pierce, 4 Met. 478, 480. Merriam v. Merriam, 6 Cush. 91. Morse v. Mason. 103 Mass. 560. Statements of facts discharged.