White v. White

• Decision Date: 24 November 1947
• Citation: 76 N.E.2d 15,322 Mass. 30
• Parties: WHITE v. WHITE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

322 Mass. 30

76 N.E.2d 15

WHITE

v.WHITE et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Nov. 24, 1947.

Petition in equity by Patrick H. White, executor of the will of Annie D. White, deceased, to determine whether omission to make provision in will for Thomas Henry White, the son of Annie D. White by adoption, was intentional and not occasioned by accident or mistake. From a decree, Patrick H. White in his individual capacity as a respondent appeals.

Reversed and rendered.

Appeal and Report from Probate Court, Middlesex County; Joseph W. Monahan, Judge

Before QUA, C. J., and DOLAN, WILKINS, SPALDING and WILLIAMS, JJ.

J. S. McKenney, of Lynn, for Patrick Henry White.

J. F. Kelley, of Cambridge, for Thomas Henry White.

DOLAN, Justice.

This is a petition in equity, brought by the executor of the will of Annie D. White, to determine whether the omission to make provision in the will of the testatrix for the respondent Thomas Henry White, her son by adoption, was ‘intentional and not occasioned by accident or mistake.’ G.L. (Ter. Ed.) c. 191, § 20. The case comes before us on the appeal of Patrick H. White as a respondent in his individual capacity from the decree entered by the judge that ‘the failure of said testatrix to make provision in her will for said Thomas Henry White was unintentional and was occasioned by accident or mistake.’

The evidence is reported, and the judge made a report of the material facts found by him at the request of the appellant. G.L.(Ter.Ed.) c. 215, § 11.¹ Under the familiar rule it is our duty to examine the evidence and to decide the case according to our own judgment, giving due weight to the findings of the judge which will not be reversed unless plainly wrong. In so doing we are not limited to the facts recited in the findings of the judge but from the evidence can find facts not expressly found by him. All questions of law, fact and discretion are open for our decision, and we can find facts contrary to the judge's findings if convinced that he is plainly wrong. Lowell Bar Association v. Loeb, 315 Mass. 176, 178, 52 N.E.2d 27.City of Lawrence v. Commissioners of Public Works, 319 Mass. 700, 702, 67 N.E.2d 482;Gordon v. O'Brien, 320 Mass. 739, 740, 71 N.E.2d 221.

The evidence discloses the following facts, which the judge found for the most part but some of which we find ourselves not in contradiction of but supplementing those found by him. The petitioner (and, whereever he is so referred to, we are referring to him as the husband of the testatrix) and the testatrix were husband and wife. They had been married for over fifty years. In 1911 they took into their home a child, Thomas Henry Kelley (the respondent Thomas Henry White). He was the child of a sister of the testatrix. He remained in the home of the testatrix and the petitioner until about seven months after her death on April 27, 1940. From 1911 up to January 1, 1921, the petitioner and the testatrix had talked about adopting him. The testatrix loved him and desired to adopt him. The petitioner did not seriously consider adopting him. When the petitioner and the testatrix were talking about adopting him, they frequently discussed to whom their property should go in the event of death. His ‘desire was that if anything happened to * * * [him] she got it, and her desire was that if anything happened to her it would come to * * * [him].’ At some time in 1920 they consulted one Badger, whom they erroneously believed to be a lawyer, because they wished to have their respective property rights ‘fixed up before they adopted the child.’ He advised them that the way to accomplish the result was to draw up mutual wills, and then to petition the Probate Court for the adoption of the child. After the consultation Badger prepared a will for the petitioner and one for the testatrix, in which each devised and bequeathed to the other all his or her property, the will of the testatrix providing thus: ‘I give, devise and bequeath unto my beloved husband, Patrick H. White, any and all property of every name and nature now owned by me or to which I may be entitled to at any future time, whether real, personal or mixed.’ The respondent Thomas Henry White (hereinafter referred to as Thomas) was not mentioned in either will. On December 29, 1920, Badger, having prepared the wills, brought them to the home of the petitioner and the testatrix and they were executed by them on that day, Badger then saying ‘if anything happens everything is fixed all right. So it is in either your name or your wife's name,’ and the testatrix said to the petitioner ‘You are entitled to it because you worked for it.’ The property standing in the name of the testatrix at her death consisted of personal property and the house which the petitioner and the testatrix had occupied, the one in which Thomas had lived with them. The house had been purchased in 1914 and title was taken in the name of the testatrix. The petitioner paid the purchase price out of his own money, and had paid off a mortgage thereon prior to the death of the testatrix except as to the sum of $1,000, which he has paid since then. On the day following the execution of the will of the testatrix, that is, on December 30, 1920, the petitioner and the testatrix signed a petition for the adoption of Thomas, which was filed in the Probate Court on January 17, 1921, and allowed by decree dated March 31, 1921, under which the name of Thomas was changed to ‘Thomas Henry White.’ The testatrix having died on April 27, 1940, the petitioner filed a petition for probate of her will on July 11, 1940. Thomas assented to the petition for probate. The petitioner was then about seventy-six years of age. In concluding his findings the judge found that ‘the omission of the respondent [Thomas] from the will of the testatrix was unintentional and was occasioned by accident or mistake’ and then entered the decree appealed from so adjudging. We are not in accord, being of opinion that on the evidence that finding and the...