Lee v. Wood

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: DONAHUE
• Citation: Lee v. Wood, 279 Mass. 293, 181 N.E. 229 (Mass. 1932)
• Decision Date: 23 May 1932
• Parties: LEE v. WOOD et al.

279 Mass. 293

181 N.E. 229

LEE

v.WOOD et al.

Supreme Judicial Court of Massachusetts, Worcester.

May 23, 1932.

Appeal from Superior Court. Worcester County; Henry T. Lummus, Judge.

Suit by Earle G. Lee against Nellie L. Wood, alias, and another. From an interlocutory decree, sustaining a plea in bar, and from a final decree dismissing the bill, plaintiff appeals.

Interlocutory and final decree affirmed.

J. B. Shea and E. J. McBride, both of Springfield, for appellant.

H. F. Knight, of Boston, for appellees.

DONAHUE, J.

The plaintiff describes himself in his bill in equity, which was brought in the superior court, as the adopted son and heir at law of W. Starr Lee who died leaving a will which has been duly probated. By his will Mr. Lee bequeathed and devised property to ‘my wife, Nellie L. Lee.’ The bill alleges that Mrs. Lee, prior to her marriage to W. Starr Lee, had obtained a divorce from her former husband in the superior court, Tolland county, Connecticut, by means of a fraud committed on that court in that she had not continuously resided in that state three years next before the date of her complaint or any substantial part of said three years as required by the laws of Connecticut. Based on this allegation the bill charges that Mrs. Lee committed fraud on Mr. Lee at the time of their marriage and continuously down to the date of his death, and fraud on his estate and on the plaintiff inaccepting the property devised and bequeathed to her by his will. The bill further avers that Mrs. Lee has transferred a substantial part of the property received by her under the will of Mr. Lee to the defendant Waid without consideration and in fraud of the plaintiff's rights. The bill includes prayers that it be decreed that the divorce decree entered in Connecticut be declared null and void in this commonwealth, that Mrs. Lee was never the legal wife of Mr. Lee, that the plaintiff is the sole heir at law of Mr. Lee, and that Mrs. Lee and the defendant Waid be ordered to turn over to the plaintiff such moneys and property as Mrs. Lee received from the estate of Mr. Lee. The defendants filed a plea in bar which sets up the petition for adoption of the plaintiff brought by Mr. and Mrs. Lee, the decree of adoption entered thereon in the probate court, and the further facts that no appeal was taken from that decree and no proceedings have been instituted by the plaintiff for its revocation or annulment. After a trial on the issues raised by the plea in bar, the trial judge entered an interlocutory decree sustaining the plea on the facts and a final decree dismissing the bill. The case is before us on the plaintiff's appeals from both decrees.

The plaintiff in his bill asserts rights as the adopted son and heir at law of Mr. Lee. He bases his asserted rights, as he must in order to have any standing in court, upon the decree of adoption entered by the probate court on June 17, 1898. The decree of adoption recites that ‘On the petition of W. Starr Lee * * * and Nellie Louise Lee, his wife, * * * the Court being satisfied of the identity and relations of the persons * * * and that it is fit and proper that such adoption should take place; It is decreed that from this day said child shall to all legal intents and purposes, be the child of said petitioners.’ The plaintiff does not contend that the decree of adoption was absolutely void. See Davis v. McGraw, 206 Mass. 294, 298, 92 N. E. 332,138 Am. St. Rep. 398. He relies on it to establish his status as the adopted son of Mr. Lee and asserts that he may now treat as void that portion of the decree which makes him the adopted son of Mrs. Lee. In effect he asks the superior court not to avoid in its entirety the decree of adoption entered by the probate court but to modify that decree.

At the time of the adoption of the plaintiff in 1898, the probate courts were, under St. 1891, c. 415, § 4, courts of superior and general jurisdiction ‘as regards all cases and matters in which authority’ had been given them by the Legislature. At common law there was no right of adoption, and the statutes vest in the probate courts alone the authority to enter decrees of adoption. St. 1851, c. 324, G. L. c. 210; Ross v. Ross, 129 Mass. 243, 262,37 Am....