Robinson v. Dayton
| Decision Date | 28 February 1906 |
| Citation | 190 Mass. 459,77 N.E. 503 |
| Parties | ROBINSON v. DAYTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Jas E. Kelley, for appellant.
Roscoe E. Learned, for appellee.
These are appeals by a son from two decrees made by a single justice affirming the action of the probate court. They come before us without findings of fact or a report of the evidence.
The first decree, as modified and affirmed by the single justice grants a license to the guardian of an insane person to sell at private sale to one who is a part owner of the fee, the ward's right of dower and homestead, 'which have never been set out' to her, for the sum of $706.56 'as it is necessary that her said interest be released or sold for her maintenance.' The other decree authorizes the investment of the sum of $656.56, part of said $706.56 in a mortgage on land worth $2,000, conditioned for the comfortable support of the insane person, and, as a further consideration for said mortgage, the guardian is to release to the mortgagee the undivided interest of the insane person in her husband's personal estate. It was held in Boynton v. Dyer, 18 Pick. 1, that the heirs presumptive of one who is non compos mentis are persons aggrieved within Rev. Laws, c. 162, § 9. Different reasons have been given for this decision (Harrington v. Harrington, 13 Gray, 513, 74 Am. Dec. 648; Farrar v. Parker, 3 Allen, 556), but it never has been doubted. Lawless v. Reagan, 128 Mass. 592, 593; Pierce v. Gould, 143 Mass. 234, 9 N.E. 568; Pattee v. Stetson, 170 Mass. 93, 48 N.E. 1022; Leyland v. Leyland, 186 Mass. 420, 71 N.E. 794. Nothing can be open on these appeals but the power of the court to make them under any evidence that might have been adduced under them. Taking up the defendant's objections in the order in which they were argued, without regard to the reasons of appeal.
We are of opinion if it was thought advantageous that the dower and homestead rights could be sold to an owner of the fee before they were set off. Rev. Laws, c. 145, § 26; c. 146, § 9; Id. c. 148, § 4. See in this connection, Leavitt v. Lamprey, 13 Pick. 382, 23 Am. Dec. 685. In ascertaining the value of these rights, the court would proceed on the basis that the widow was entitled to her dower, and subject thereto to homestead, as is laid down in Cowdrey v. Cowdrey, 131 Mass. 186. We are also of opinion that it was not necessary to have...
To continue reading
Request your trial