Ellis v. McCoy

• Decision Date: 14 February 1955
• Citation: 124 N.E.2d 266,332 Mass. 254
• Parties: Melvin B. ELLIS v. McCOY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 266

124 N.E.2d 266

332 Mass. 254

Melvin B. ELLIS v. McCOY.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Oct. 4, 5, 1954.

Decided Feb. 14, 1955.

James Zisman, Roxbury, for petitioner.

John F. McAuliffe, Boston, for respondent.

Before QUA, C. J., and LUMMUS, WILKINS, WILLIAMS and COUNIHAN, JJ.

WILLIAMS, Justice.

There are appeals by Melivin B. Ellis and his wife, Frances V. Ellis, from two decrees entered in the Probate Court after a hearing on their petition to adopt the illegitimate female child of the respondent, Marjorie J. McCoy. The evidence is reported and the trial judge has filed a report of the material facts, which are summarized as follows.

In August, 1950, the respondent, an unmarried woman, twenty-one years of age, who is referred to hereinafter as Marjorie, discovered that she was pregnant. She told her mother of the fact and the mother consulted a physician whom she knew, one Dr. Sands, as to what should be done. Dr. Sands learned that the petitioners, Mr. and Mrs. Ellis, wished to adopt a child. He talked with them about an adoption and determined that they were suitable persons to be adoptive parents. He did not tell them the name of the prospective mother. They were willing to adopt the child when born and agreed to pay all confinement expenses which were estimated to be about $500. Marjorie and her mother were informed of the arrangement and were pleased because they wished to avoid any publicity. Marjorie was not told and she did not wish to know who the people were who were going to adopt her child. Nothing was said to her by Dr. Sands as to the religious belief of the petitioners although in fact they were of the Jewish faith and Marjorie was of the Roman Catholic faith.

The child was born of February 23, 1951, in a Boston hospital. Mr. Ellis as had been agreed paid all expenses including a payment to Marjorie's mother to reimburse her for certain expenditures. The child was taken by the petitioners from the hospital and has remained in their home ever since. The petitioners engaged an attorney, suggested by Dr. Sands, who prepared a petition for the adoption of the child. The petitioners signed it without seeing on it the name of the mother which was purposely covered over. Marjorie consented to the petition by signing it in the hospital on March 5, 1951. Her mother signed as a witness to Marjorie's signature. The names of the petitioners were covered when Marjorie signed the petition as she still did not wish to know who they were. As Marjorie's signature on the petition had not been dated and notarized, she was called by the petitioners' attorney to his office on March 27, when she again signed the petition, and her new signature was dated and attested before a notary public. On this occasion Marjorie first learned that her child was with a 'nonCatholic' family. She became 'disturbed and apprehensive.' The attorney read to her the 'new' adoption statutes and told her that the petition would not be allowed for at least a year and that 'she had time to think things over and to change her mind.' Early in April when she called with her mother on Dr. Sands she learned that the child was with a Jewish family. 'This information greatly upset Marjorie who promptly demanded the return of her child so she could have her brought up a Catholic.' She was also displeased when she learned later that both Mr. and Mrs. Ellis previously had been divorced. On May 15, 1951, she met the Ellises at the attorney's office and demanded that the child be given back to her. The Ellises were determined to keep the child. The Ellises are suitable people to adopt the child. The child is happy with them and they have grown to love her. The child is being brought up in the Jewish faith and 'Marjorie wants her brought up a Catholic, and the issue has now become a matter of conscience with her.' The judge found that Marjorie consented to the petition by persons unknown to her 'under strong pressure exerted upon her by both Dr. Sands and her own mother'; but it does not appear that her consent was not voluntary and made with full knowledge of its legal consequences. The mother feared that a disclosure of her daughter's pregnancy would injure the family name and the prevention of notoriety was her first concern. The 'religious issue' is the primary reason for Marjorie's present objections to the allowance of the petition for adoption. She has become conscience stricken due to religious scruples.

On March 29, 1951, Mr. and Mrs. Ellis filed the petition for the adoption of the child. In the late summer of 1951 or the early fall Marjorie signed a motion 'to strike out her name wherever it appears alleging consent; and * * * that the court allow her to withdraw and revoke her alleged consent.' This motion was not filed in court until June 9, 1953. On the same day she filed a petition that she or some other suitable person be appointed guardian of the child with custody. The two petitions and the motion were heard together on or about June 15, 1953. The judge entered three decrees. In one he allowed the motion for the right to withdraw consent 'both as a matter of discretion and as a matter of law' and declared the consent to be null and void. In the second he decreed that the petition for adoption be dismissed ...