Sullivan v. Quinlivan

• Decision Date: 24 February 1941
• Citation: 32 N.E.2d 209,308 Mass. 339
• Parties: SULLIVAN v. QUINLIVAN (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

308 Mass. 339

32 N.E.2d 209

SULLIVAN

v.QUINLIVAN (two cases).

Supreme Judicial Court of Massachusetts, Hampden.

Feb. 24, 1941.

Proceeding on the separate petitions of John J. Sullivan and Patrick J. Sullivan, each seeking the discharge of Theodore V. Quinlivan as the conservator of his respective estate. From a decree dismissing the petitions, the petitioners appeal.

Decree affirmed.Appeal from Probate Court, Hampden County; Denison, Judge.

Argued before FIELD, C. J., and DONAHUE, QUA, DOLAN, and RONAN, JJ.

J. Derham, of Uxbridge, and I. H. Hurowitz, of Springfield, for petitioners.

No brief for respondent.

QUA, Justice.

The petitioners are brothers. Each petitioner alleges that on December 1, 1936, he was adjudged incapacitated by reason of advanced age to care properly for his property; that the respondent was appointed his conservator (see G.L. (Ter.Ed.) c. 201, § 16); that the petitioner believes that he is now capable of managing his own estate; and that the conservatorship is no longer necessary. Each prays that the conservator be discharged. The judge of probate dismissed the petitions.

The evidence is not reported. In the case of John J. Sullivan the judge made the following findings of fact:

‘For the third time, since at his request, a conservator was appointed of his property in December 1936, John J. Sullivan, the petitioner, who is 61, petitions that his conservator may be discharged. He is unmarried, lives with his brother, his habits are good, his schooling was slight, his life has been that of a laborer in railroad shops, he has little general knowledge and since he inherited some thirty-four thousand ($34,000) dollars four years ago and his property was put in charge of a conservator, he has lived comfortably, no longer working, doing the marketing while his brother kept house. His allowance from the conservator has been two hundred ($200.) dollars a month, as has his brother's and the hearing disclosed that they had been able to put in a savings bank about four thousand ($4,000) dollars. His grievance is that he cannot do as he will with the money, that it is a stigma upon him to have a conservator, and that the expense of the conservator and his bond is wasteful.

‘The only testimony offered was that of two physicians whose qualifications were admitted, one of whom had talked with the petitioner in July 1939 and the other in July 1940, each of whom said the petitioner is competent to manage his own affairs.

‘I called the petitioner to the stand, questioned him at length as to his history, experience, his knowledge about his affairs as shown in the accounts of his conservator and generally.’

In the case of Patrick J. Sullivan the judge made precisely the same findings of fact, except that the petitioner was sixty-nine years of age, had a ‘bad leg’ and was in poor health, was a widower with one child, who was not notified of the petition, had been a laborer ‘who greased switches and curves for a street railway,’ and did ‘the cooking and housekeeping for himself and his brother.’

The records leave some doubt as to whether, within the time allowed by G.L. (Ter.Ed.) c. 215, § 11, the petitioners properly requested the judge to report ‘the material facts found by him.’ We assume, however, that the findings were made in response to sufficient requests. This assumption construes the records most favorably to the petitioners, since if the findings are thus treated as a report of the material facts under the statute they must be deemed to include all facts upon which the judge acted in dismissing the petitions and leave no room for any further findings adverse to the petitioners to be implied from the decrees. Topor v. Topor, 287 Mass. 473, 476, 192 N.E. 52;Birnbaum v. Pamoukis, 301 Mass. 559, 562, 17 N.E.2d 885;Thaxter v. Traiser, 305 Mass. 341, 342, 25 N.E.2d 722.

The question to be decided is whether, solely upon the findings stated by the judge, the petitioners were entitled to have the conservatorships discharged. There is no finding upon the vital issue of the petitioners' present capacity ‘to properly care for [their] property.’ G.L. (Ter.Ed.) c. 201, § 16. There is no finding that the judge believed the testimony of the physicians to whom he refers, or that the petitioners' condition at the time of the hearing was the same as when the physicians talked with them. We do not know to what extent the physicians' testimony may have been weakened or negatived by evidence elicited by the judge's examination of the petitioners. The petitioners could have had the entire evidence reported. G.L. (Ter.Ed.) c. 215, § 12; c. 214, § 24. They will still have this right upon any subsequent petitions. There is nothing now before us from which we can reasonably make further findings or draw inferences upon the point at issue. We cannot safely infer full capacity to manage their affairs from the fact that the petitioners have put money in a savings bank or from...