Heavor v. Page
| Decision Date | 24 March 1894 |
| Citation | 36 N.E. 750,161 Mass. 109 |
| Parties | HEAVOR v. PAGE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
There was evidence that said Mary R. Popkin had lived in said Cambridge during about 50 years prior to her death, and that at the time of her death she lived and had her usual place of business in said Cambridge. It was admitted in the plaintiff's pleadings that the plaintiff at the time of said Mary R. Popkin's decease, lived and had his usual place of business in Everett, in said county of Middlesex, and there was evidence tending to show that, at the date of said writ, the defendant lived and had his place of business in said Cambridge. There was conflicting evidence upon the issue as to where the plaintiff lived at the date of said writ, the plaintiff's evidencetending to show that he had removed from said Everett to Chelsea, in the county of Suffolk, on May 6, 1891, and the evidence of the defendant tending to show that he had not removed from Everett to Chelsea until after the date of the writ, and had not changed his domicile by such removal. The defendant claimed that the provisions of section 2 of chapter 161 of the Public Statutes were imperative,--that "may" in said section should be construed as though it read "must" or "shall,"--and requested the court to instruct the jury that if the plaintiff and said Mary R. Popkin respectively, lived and had their respective usual places of business in Middlesex county, the one in Cambridge and the other in Everett, at the time of the decease of said Mary R Popkin, the jury must find for the defendant; but the court declined so to instruct the jury, and the defendant excepted to such refusal. The court submitted to the jury certain questions, that they might return answers to the same under instructions not excepted to. Upon the return by the jury of said answers the court, against the defendant's objection, and subject to his exception, directed the jury to return a verdict for the plaintiff, and such a verdict was returned. Defendant excepts. Exceptions overruled.
C.F. Donnelly, for plaintiff.
D.E. Ware and M.P. White, for defendant.
Whatever may be our opinion upon the question sought to be raised by the defendant's exceptions, we cannot consider it, as the decision of the justice of the superior court was final. Guild v. Bonnemort, 156 Mass. 522, 31 N.E. 645; Pub.St. c. 152, § 10; Id. c. 153, § 8.[1]
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