Lord v. Cummings

• Decision Date: 30 June 1939
• Parties: LORD v. CUMMINGS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

303 Mass. 457
22 N.E.2d 26

LORD
v.
CUMMINGS.

Supreme Judicial Court of Massachusetts, Plymouth.

June 30, 1939.

Proceeding in the probate court by Eugene H. Lord against Anne W. Cummings for an injunction to restrain respondent from effecting a change in the lawful names of their minor children. From a decree sustaining respondent's demurrer to the petition, the petitioner appeals.

Appeal dismissed.

[22 N.E.2d 27]

Appeal from Probate Court, Plymouth County; George M. Poland, Judge.
T. J. Boynton, of Arlington, and Frank Wilson, of Boston, for petitioner.

G. L. Wainwright and D. W. Wilbar, both of Brockton, for respondent.

COX, Justice.

The petitioner brought petition in equity in the Probate Court for Plymouth County in which he alleged, among other things, that the respondent who on April 7, 1930, was granted a decree nisi on a libel for divorce against him, and also the custody of their minor children, which decree became absolute, had caused the minor children to adopt and use another name than their own without the authority or action of any court. He prayed for an injunction to restrain the respondent from doing any thing to effectuate a change in the lawful names of their minor children. The respondent demurred to the petition, and a decree was entered sustaining the demurrer and dismissing the petition without prejudice to the right of the petitioner to raise the issue stated in any other proceeding. The petitioner appealed.

If we assume, without deciding, that the subject matter of this petition comes within the general principles of equity jurisprudence, nevertheless we are of the opinion that the Probate Court has no jurisdiction. It was the duty of the Probate Court to consider such a point of its own motion. Baldwin v. Wilbraham, 140 Mass. 459, 4 N.E. 829;Commonwealth v. Andler, 247 Mass. 580, 142 N.E. 921, and cases cited; Jones v. Jones, Mass., 7 N.E.2d 1015;Golden v. Crawshaw, Mass., 19 N.E.2d 67.

It is well settled that at common law a person may assume or be known by different names, and that contracts and transactions entered into under such names will be valid and binding if unaffected by fraud. Minot v. Curtis, 7 Mass. 441;William Gilligan Co. v. Casey, 205 Mass. 26, 31, 91 N.E. 124. See Rand v. Farquhar, 226 Mass. 91, 97, 115 N.E. 286;Liddell v. Middlesex Motor Co., 275 Mass. 346, 352, 175 N.E. 737;Farnum v. Bankers' & Shippers Ins. Co., 281 Mass. 364, 369, 183 N.E. 718;Bridges v. Hart, Mass., 18 N.E.2d 1020. G.L.(Ter.Ed.) c. 210, § 12...