Stone v. Stone , 277 Pa. 277 ( 1923 )

Opinion by

Mr. Justice Kephart,

This is a bill to establish a trust relation with respect to $11,500 transferred to appellant’s wife.

Complaint is made that the court below did not answer complainant’s requests for findings of fact as required by Rule 62: Glenn v. J. C. Trees Oil Co., 266 Pa. 74, 81. There may have been a technical violation of this rule. We do not so hold in view of the amendment of June 27, 1919, which empowers the judge to state findings of fact “in his own language.” And all requests of the parties “not so adopted and embodied shall be either affirmed, refused, or modified, with such statement in regard thereto as may be deemed necessary.” Some requests were marked “refused,” but as the findings of the chancellor are concise, unambiguous and material, fully answering all the requests so marked, no harm has been done the complainant, even if there had been a technical violation of the rule. We would not reverse the case on this ground alone. Moreover, no exception in the court below specified the error here urged, and when the trial judge’s attention is not called to the specific matter, we will not consider it unless the error is basic and fundamental: Achenbach v. Stoddard, 253 Pa. 338; Leh v. Dutt, 66 Pa. Superior Ct. 171.

It is not necessary to decide whether the mere possession of money by the wife was sufficient evidence of ownership, nor to review authorities bearing thereon. It may be prima facie, but, even if the court below misconceived the law on this subject, the salient feature plainly appearing in the findings is that the money was given in consideration of the settlement of a lawsuit. It was not necessary for the chancellor, in support of his decision, to reply on a presumption arising from possession; it is evident it had no weight in the ultimate determination of the case. The testimony of Mr. Evans, a member of the bar, may have been persuasive, but not conclusive. It was not error to refuse to adopt it in the face of other relevant evidence. It was to be considered with all the facts, and as be was to receive a percentage of any money collected on account of tbe alienation litigation, as appellee’s counsel states, it may be bis client! deliberately misstated tbe fact that tbe suit was voluntarily discontinued without compensation. Wbat appellant attempted was to establish a trust; this could be done only by clear, explicit and unequivocal evidence. Here it was very much disputed, with a number of witnesses on each side, — appropriate for tbe application of tbe rule that tbe findings of tbe chancellor are to be sustained if tbe record discloses evidence justifying tbe conclusions reached: Glenn v. Trees, 276 Pa. 165, and authorities cited. Tbe court below did not commit reversible error in bolding there was an absolute transfer of tbe money based on an adequate consideration.

Tbe decree of tbe court below is affirmed, at tbe cost of appellant.