Fenelon v. Fenelon

• Decision Date: 28 February 1923
• Parties: FENELON v. FENELON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

244 Mass. 14

138 N.E. 334

FENELON

v.FENELON.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 28, 1923.

Appeal from Probate Court, Suffolk County.

Proceeding by Patrick C. Fenelon against Rose M. Fenelon. On petition for decree adjudging that respondent had deserted the petitioner, and that he was living apart from her for justifiable cause. From a final decree in favor of petitioner, respondent appeals. Affirmed.

The proceeding was instituted in the probate court by petition alleging that respondent had deserted the petitioner, and that for justifiable cause he was living apart from her, and that he had need to be relieved of the disabilities of coverture, so far as to be enabled to dispose of his property as if sole. Decree was rendered for the petitioner, and the respondent appealed to the Supreme Judicial Court, in which she filed objections to the decree (1) because she had not deserted the petitioner; (2) because the petitioner was not living apart from her for justifiable cause; (3) because the petitioner had refused to allow her to live with him. The case was referred to a master, who found that at the date the petition was filed the petitioner was living apart from the respondent for justifiable cause, and that her refusal to live with him unless their daughter also lived with them was in effect a desertion. Exceptions to the report were overruled, and the report confirmed.

Oscar Storer and John J. Lucas, both of Boston, for appellant.

E. T. Conley, of Boston, for appellee.

RUGG, C. J.

This is a petition under St. 1906, c. 129, G. L. c. 209, § 36, alleging that the petitioner is living apart from his wife for justifiable cause; that she has deserted him and he desires to be relieved ‘of the disabilities of coverture, so far as to be enabled to dispose of his personal and real estate without his wife's written consent in the same manner and with the same effect as if he were sole’; and praying for a decree establishing the fact of such desertion and that he is living apart from his wife for justifiable cause. In the probate court a decree was entered for the petitioner. On appeal to the Supreme Judicial Court the case was referred to a master; the exceptions to his report were overruled and a decree was entered for the petitioner. The respondent appealed.

Before it was practicable to reach a determination as to the questions presented by this appeal and to prepare an opinion expressive of the decision, the fact of the death of the petitioner on December 1, 1922, was called to the attention of the court. So far as we are aware, no executor of a will of the petitioner or administrator of his estate has been appointed. No such representative has been admitted as a party in the case.

In considering the disposition of any cause, the court takes cognizance of subsequent events of decisive import brought to its notice as having supervened since the proceeding was instituted. Sullivan v. Secretary of Commonwealth, 233 Mass. 543, 124 N. E. 422, and cases collected.

As matter of practice at common law. as well as under G. L. c. 235, § 4, judgment will be entered, where the material facts are settled in any way recognized as proper by the law during the lives of the parties, as of a preceding day, whenever the cause has been continued or postponed for the purpose of obtaining a decision of questions of law and the the intervening death of a party would otherwise effect the rights of parties. If, for example, death of a party occurs after verdict, delay for argument or decision of questions of law upon which its validity depends ‘will not be suffered to deprive one of benefits to which he appears to have been justly entitled under it. * * * Although technically there can be no appearance for a deceased party, yet this court will pass upon the questions so submitted, and hear suggestions as to their merits, from any one who holds the office of an attorney within the court.’ Kelley v. Riley, 106 Mass. 339, 341, 342 (8 Am. Rep. 336). The practice there indicated has been followed as nearly as practicable in the case at bar. Although the case had been fully argued before the death of the petitioner, the attorney who represented him at the oral argument and the attorney for the respondent have accepted the invitation of the court to make such supplementary written argument as seemed to them appropriate. The case at bar on this point is distinguishable from Rice v. Rice, 184 Mass. 488, 69 N. E. 319, where the facts were not settled before the death of one of the parties.

The case will be considered on its merits and the order...