Schaefer v. Holmes

• Decision Date: 04 December 1931
• Citation: 277 Mass. 468,178 N.E. 613
• Parties: SCHAEFER v. HOLMES. HOLMES v. SCHAEFER (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

277 Mass. 468

178 N.E. 613

SCHAEFER

v.HOLMES.

HOLMES

v.SCHAEFER (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 4, 1931.

Appeal from Probate Court, Suffolk County; W. M. Prest, Judge.

Petition by Albert A. Schaefer, as administrator of the estate of Frederick T. Currie, deceased, against William J. Holmes for partial distribution, petition by William J. Holmes, as administrator of the estate of Annie H. Currie to strike from the record in her estate the appearance of Albert A. Schaefer, the administrator with the will annexed of the estate of her husband, and petition by William J. Holmes, as administrator of the estate of Dorothy Currie to strike from the record in her estate the appearance of Albert A. Schaefer, the administrator with the will annexed of the estate of her father. From the decree rendered, William J. Holmes, as administrator of the estate of Annie H. Currie and as administrator of the estate of Dorothy Currie appeals.

Decree on petition for distribution modified, and, as modified, affirmed, and the other decrees affirmed.

J. Noble and S. Vaughan, both of Boston, for William J. Holmes and another.

J. N. Clark, of Boston, for Eva Currie Joy and others.

FIELD, J.

Frederick T. Currie, his wife, Annie H. Currie, then about 24 years old, and their only child, Dorothy Currie, all of Boston, lost their lives in a common disaster as a result of the capsizing of a power boat, the Pirate, in which they were cruising. In the settlement of their estates the order in which they died was important and that question was raised by three petitions in the probate court-a petition by the administrator with the will annexed of the estate of Mr. Currie for partial distribution, a petition by William J. Holmes as administrator of the estate of Mrs. Currie to strike from the record in her estate the appearance of the administrator with the will annexed of the estate of her husband, and a petition by said Holmes as administrator of the estate of Dorothy Currie to strike from the record in her estate the appearance of the administrator with the will annexed of the estate of her father. On the petition for partial distribution of the estate of Mr. Currie a decree was entered ordering distribution and excluding therefore the wife and daughter of the deceased. On the other petitions decrees reciting in each case that Annie H. Currie and Dorothy Currie died simultaneously in a common disaster and that both of them predeceasedFrederick T. Currie, and dismissing the petitions, were entered. The administrator of the estate of Annie H. Currie appealed from the decree of partial distribution and from the decree dismissing his petition, and the administrator of the estate of Dorothy Currie appealed from the decree of partial disribution and from the decree dismissing his petition. The probate judge made a report of the material facts in which he stated that on all the evidence he found that Mr. Currie survived his wife and daughter. The evidence is reported.

No error is disclosed. The decrees followed necessarily from the finding that Mr. Currie survived his wife and daughter and this finding, since not plainly wrong in the light of other findings and of the evidence reported, must stand. Ball v. Hopkins, 268 Mass. 260, 265, 167 N. E. 338;Collis v. Walker (Mass.) 172 N. E. 228.

In each of these proceedings survivorship was a fact to be proved by direct evidence or by inference from the circumstances of the disaster. There was no presumption that any victim of the disaster survived any other, based on age, sex and physical condition, though such facts, so far as material, were to be considered in connection with the other circumstances of the disaster. Coye v. Leach, 8 Metc. 371,41 Am. Dec. 518;Robson v. Lyford, 228 Mass. 318, 327, 117 N. E. 621;Young Women's Christian Home v. French, 187 U. S. 401, 410, 23 S. Ct. 184, 47 L. Ed. 233; Wigmore on Evidence, § 2532, and cases cited. See, also, Fuller v. Linzee, 135 Mass. 468.

The Pirate set out from Marblehead Harbor for Boston at about four o'clock in the afternoon of July 4, 1928, with five persons on board-Mr. and Mrs. Currie, Dorothy Currie, Albert E. Morris, and his sister, Margaret Morris. A violent storm arose between four o'clock and half past four when the boat was in the sea. The wind, blowing a full gale, came off shore, striking the boat on its starboard side. It rained hard. Mr. Currie was at the wheel and the others went down into the cabin. The boat listed to port, and Mr. and Miss Morris came on deck and jumped overboard on that side. Then the boat capsized, turning completely over. The dead bodies of Mr. and Mrs. Currie were found near the boat and that of Dorothy Currie was washed ashore several days later. Miss Morris testified that after the boat capsized she saw Mr. Currie struggling in the water. There was no evidence that either Mrs. Currie or Dorothy Currie was seen alive or heard by any one after Mr. and Miss Morris jumped overboard.

It is not disputed that Mr. Currie was alive and struggling in the water after the boat capsized. Furthermore, the evidence amply warranted the findings of the judge that Mr. Currie ‘was an average swimmer, one who could keep afloat at least half an hour,’ that when he was seen struggling in the water he had his slicker on, that when his body was...