In re Buyarsky

• Decision Date: 02 February 1948
• Citation: 77 N.E.2d 216,322 Mass. 335
• Parties: Petition of BUYARSKY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

322 Mass. 335

77 N.E.2d 216

Petition of BUYARSKY et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Feb. 2, 1948.

Petition by Frank Buyarsky, his wife and two minor children, seeking to change their surnames to Byers, opposed by one Frank H. Byers. From a final decree dismissing the petition, petitioners appeal.

Final decree reversed and decree entered granting the petition.Appeal from Probate Court, Middlesex County; George M. Poland, Judge.

Before QUA, C. J., and LUMMUS, DOLAN, RONAN, and WILLIAMS, JJ.

Mendel Shapiro, of Lowell, for Frank Buyarsky and others.

RONAN, Justice.

This is a petition filed in the Probate Court for Middlesex County under G.L. (Ter.Ed.) c. 210, §§ 12-14, by Frank Buyarsky, his wife and two minor children, seeking to change their surnames to Byers for the reason that Frank Buyarsky has for the last fifteen years been known by his business and fraternal associates as Frank Byers and the remaining petitioners are known in the community by the name of Byers. The granting of the petition was opposed by one Frank H. Byers, who conducted a general insurance business in the same city in which the petitioners resided. The petitioners appealed from a final decree dismissing the petition.

Frank Buyarsky, hereinafter called the petitioner, testified that he had assumed the name of Frank Byers soon after he graduated from high school in 1932, and had used it in the different occupations and businesses in which he was engaged; that he had since December, 1942, conducted a home furnishings store, selling goods on the instalment plan under the name and style of ‘Washington Home Equipment, Frank Byers, Proprietor,’ doing an annual business of $100,000 a year and having outstanding accounts receivable amounting to over $40,000; that he employed seven persons in this business and had customers in Lowell, Lawrence, Haverhill and Woburn, and in Nashua, New Hampshire; that his customers were furnished with a book, which he produced and which contained the above quoted name under which he did business; that all of the customers knew him as Byers; that he advertised in the newspapers and telephone directory under the above described name and style; and that his bank accounts were in the name of Frank Byers and he used this name in signing all his checks. From 1936 to 1946 he had purchased five insurance policies insuring his life under the name of Frank Byers, designating as beneficiary his wife, who was described as Polly B. Byers. His older child, who was nine years of age, was enrolled in a public school as Harvey Byers. The petitioner's uncle had been named Philip Byers since he became a citizen over twenty years ago. The petitioner's brother William and his wife changed their names to Byers by virtue of a decree of the Probate Court in an adjoining county on January 15, 1947. The Probate Court of Middlesex County had refused the petition of the petitioner's brother to change his name. The various policies, the certificate of his son's enrollment in school and a copy of the decree granting William and his wife the right to change their names were admitted in evidence. Other witnesses testified to knowing the petitioner only by the name of Byers. The contestant, other than showing that Frank Buyarsky registered his automobile in that name, did not really attack the veracity of the petitioner's testimony. The objections of the contestant to the granting of the petition were that during the last few years on six or seven occasions checks of the petitioner were confused with checks of his at the bank where one had an account in the name of Frank Byers and the other in the name of Frank H. Byers, that the name of the petitioner as Frank Byers appeared next to his in the telephone directory, that on a few occasions he had been called to the telephone by persons who intended to speak to the petitioner, and that the telephone company had refused to remove the name of Frank Byers from the listing or to change the order of listing so that the petitioner's name would not appear just above his.

The judge made no findings of fact, and the decree dismissing the petition imports the finding of all subsidiary facts necessary to support it. Birnbaum v. Pamoukis, 301 Mass. 559, 561, 17 N.E.2d 885;Marshall v. Landau, 308 Mass. 239, 241, 31 N.E.2d 540.

The statute, G.L.(Ter.Ed.) c. 210, § 12, authorizes the granting of a petition for change of name if found by the judge to be ‘for a sufficient reason consistent with public interests.’ The dismissal of the petition implies a finding that there was no such reason shown by the petitioners. We have a report of the evidence and can find the facts for ourselves, and can make findings in addition to those made by the judge and findings contrary to those made by him if we are satisfied that his findings are plainly wrong. Flower v. Billerica, 320 Mass. 193, 68 N.E.2d 697;Gordon v. O'Brien, 320 Mass. 739, 71 N.E.2d 221; 265Tremont Street, Inc. v. Hamilburg, 321 Mass. 353, 73...