Tucker v. Fisk

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: MORTON, J.
• Citation: Tucker v. Fisk, 154 Mass. 574, 28 N.E. 1051 (Mass. 1891)
• Decision Date: 11 November 1891
• Parties: TUCKER et al. v. FISK.

154 Mass. 574

28 N.E. 1051

TUCKER et al. v. FISK.

Supreme Judicial Court of Massachusetts, Middlesex.

November 11, 1891

COUNSEL

J.L. Thorndike and Sherman Hoar, for appellants.

G.L Mayberry, for appellee.

OPINION

MORTON J.

This was a petition to the probate court of Middlesex county by the heirs at law and next of kin of Eliza Jane Fisk, late of Waltham, to revoke and annul a decree of adoption made upon the petition of said Eliza in 1884, and assented to by the adopted person, the defendant, in which it was decreed that the defendant should thenceforward be the child, to all legal intents and purposes, of the petitioner, and that his name should be changed from Jasper Paine Blake to Jasper Leon Fisk. The grounds alleged in the petition were that at the time of said alleged adoption the said Eliza was of unsound mind; that she was induced to present and concur in said petition by means of fraud and undue influence practiced upon and exercised over her by the defendant; and that these facts were fraudulently concealed by him from the court. After hearing, the petition was dismissed in the probate court because the allegations did not appear to be sustained. An appeal was taken to this court, and the case comes here on the question whether the ruling of the justice who heard it that no appeal lay from the probate court, and that, if it did, the petition disclosed no cause of action or locus standi on the part of the petitioners, was correct. There would seem to be nothing in the nature of a decree of adoption to take away the power of the probate court to revoke and annul it on the ground that it had been procured by fraud practiced upon the court. It is said generally in Waters v. Stickney, 12 Allen, 15, that it is impossible to deny the power of a probate court "to correct errors arising out of fraud or mistake in its own decrees;" and the same thing is held in substance in Gale v. Nickerson, 144 Mass. 415, 11 N.E. 714. There is nothing in the statutes which places a decree of adoption on any different footing in this respect from that of other judgments and decrees of that court. The defendant does not, indeed, claim that the probate court has not the power to annul for fraud a decree of adoption like any other decree or judgment; but he insists that there is no appeal from the refusal of the probate court to revoke the decree of adoption in this case. The language of the statute relating to appeals from the probate court is very broad, and is as follows: "A person aggrieved by any order, sentence, decree, or denial of a probate court, or of a judge of such court, may, except in cases otherwise provided for, appeal therefrom to the supreme judicial court." Pub.St. c. 156, § 6. There is nowhere any provision taking away the right of appeal from a decree of the probate court denying a petition to vacate and annul one of its judgments on the ground of fraud. In Gale v. Nickerson, supra, which was a case where there was an appeal from the refusal of the probate court to reopen a decree allowing the will of John Nickerson on the ground that it had been obtained by fraud, not only did the right to appeal pass without question, so far as the reported case shows, but it was expressly upheld by this court. We see nothing in the nature of a decree of adoption which should deprive parties on the one side or the other of the right to appeal from the dismissal or allowance by the probate court of a petition to reopen and annul it on the ground of fraud.

The defendant further insists that the petitioners have no standing in court, and no right to be heard. It is true that the next of kin of Eliza Jane Fisk could not have appealed from the decree of adoption during her life-time. The only way in which they could have attacked it during her life would have been to procure the appointment of a guardian, who could have taken an appeal or other proceedings in her name. Whether, in case they had petitioned for the appointment of a guardian, and the probate court had refused to appoint one that would have been conclusive upon them in any subsequent proceedings, we do not now consider. The petitioners lived out of the state at the time when the adoption proceedings were instituted, and do now, and were entirely ignorant till after the death of said Eliza of her condition, and of the facts attending the adoption. If they cannot now be heard there would seem to be no way in which the adoption proceedings, however fraudulent, can be reached; and the death of Eliza will have operated to clothe the defendant's fraud with immunity from attack. We do not think her death can have that result. But for the alleged adoption, the petitioners, who were the next of kin of Eliza, would have been her heirs at law. If the adoption proceedings should turn out for any reason to be invalid, they will be entitled to her estate as her heirs at law. They have, therefore, a direct pecuniary interest in the matter, like disinherited heirs in proceedings concerning their ancestor's will, or heirs whose ancestor was fraudulently induced to make a conveyance of real estate. Holman v. Loynes,...