In re Petition of Curran

• Decision Date: 26 May 1943
• Citation: 49 N.E.2d 432,314 Mass. 91
• Parties: Petition of CURRAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

314 Mass. 91

49 N.E.2d 432

Petition of CURRAN.

Supreme Judicial Court of Massachusetts, Middlesex.

May 26, 1943.

Reservation and Report from Probate Court, Middlesex County; J. W. Monahan, Judge.

Petition in probate court by Elizabeth Harriet Curran, an adult unmarried woman, for leave to adopt a child under the age of 14 years, referred to as Charles Henry Drake, and for a change of the name of the child to Charles Henry Curran. On reservation and report.

Decree entered granting petition.

A. M. Pinkham, of Boston, for petitioner.

No appearance for defendant.

Before FIELD, C. J., and DONAHUE, QUA, DOLAN, and COX, JJ.

FIELD, Chief Justice.

This is a petition brought in the Probate Court by Elizabeth Harriet Curran, of Somerville, an adult unmarried woman, for leave to adopt a child under the age of fourteen years, referred to in the petition as Charles Henry Drake, and for a change of the name of the child to Charles Henry Curran. The petition bears the indorsement of consent to the adoption by the mother of the child, the petitioner.

The judge of probate made a ‘reservation and report’ in the following terms : ‘This is a petition for the adoption and change of name of Charles Henry Drake which petition is brought by an adult unmarried woman praying for the adoption of her own natural child. No commissioner was appointed to take the testimony. A report of this case was received from the department of public welfare. The facts in this case were stated by counsel for the petitioner and there is no controversy concerning any of the facts so stated. It is a case stated. The petitioner who was unmarried and domiciled in Massachusetts, in 1939 went to Nashua, New Hampshire and gave birth to said child on June 11 of that year. This birth was recorded at the city hall in said Nashua on July 11, 1939 as a male child of William Drake and Elizabeth Harriet Curran Drake, husband and wife. The petitioner was never married to William Drake. Subsequently, on November 29, 1942, the child was taken to St. Patrick's Catholic Church in Nashua, New Hampshire, and baptized by Reverend Father Quinn and given the name Charles Henry Drake. The petitioner, who has had the custody of the said child since his birth in an intelligent young woman. She is gainfully employed and earning a salary adequate to support herself and the said child. She maintains a small, comfortable apartment together with her mother and the child. Since the birth of said child his mother has always referred to him as Charles Henry Drake. The court submits the following questions: First. Can this unmarried adult petitioner adopt her own natural child who was born out of wedlock? Second. If the said petitioner can legally adopt the said child can the court decree the change of name of said child from Charles Henry Drake to Charles Henry Curran, as prayed for? Third. Did the said child, at his birth, take the surname of his unmarried mother? Pursuant to the provisions of General Laws, chapter 215, section 13, I reserve and report the case on the facts reported above for the consideration and determination of the Supreme Judicial Court.’

It is apparent from the form of the ‘reservation and report’ that the judge of probate misapprehended the scope of his power to reserve and report a case under G.L. (Ter.Ed.) c. 215, § 13. That section is as follows: ‘A judge of the probate court by whom a case or matter if heard for final determination may reserve and report the evidence and all questions of law therein for consideration of the full court, and thereupon like proceedings shall be had as upon appeal. And if, upon making an interlocutory decree or order, he is of opinion that is so affects the merits of the controversy that the matter ought, before further proceedings, to be determined by the full court, he may report the question for that purpose, and stay all further proceedings except such as are necessary to preserve the rights of the parties.’ The present case does not fall within the provision of this section authorizing a report ‘upon making an interlocutory decree or order.’ There has been no ‘interlocutory decree or order.’ The other provision for a report in the section applies only when ‘a case or matter is heard for final determination,’ and contemplates a report of ‘the evidence and all questions of law therein.’ This provision does not authorize a report of a part of a case or of specific questions of law arising therein. The report must be of the entire case and in such form that this court can enter or order the entry of a final decree disposing of the case. Dunlop v. Claussen, 313 Mass. 715, 48 N.E.2d 919. See also Taft v. Stoddard, 141 Mass. 150, 6 N.E. 836;Agoos v. Cosmopolitan Trust Co., 241 Mass. 103, 106, 134 N.E. 366.

With some hesitation, however, we conclude that this ‘reservation and report’ may properly be treated as a report of the entire case upon which this court can enter or order the entry of a final decree disposing of the case.

There is no legal impediment to the adoption prayed for. It is within the scope of G.L. (Ter.Ed.) c. 210, § 1, as amended by St.1941, c. 44, which, so...