322 Mass. 335 | Mass. | 1948
This is a petition filed in the Probate Court for Middlesex County under G. L. (Ter. Ed.) c. 210, §§ 12-14,
Frank Buyarsky, hereinafter called the petitioner, testified that he had assumed the name of Frank Byers soon after he graduated from high school in 1932, and had used it in the different occupations and businesses, in which he was engaged; that he had since December, 1942, conducted a home furnishings store, selling goods on the instalment plan under the name and style of “Washington Home Equipment, Frank Byers, Proprietor,” doing an annual business of $100,000 a year and having outstanding accounts receivable amounting to over $40,000; that he employed seven persons in this business and had customers in Lowell, Lawrence, Haverhill and Woburn, and in Nashua, New Hampshire; that his customers were furnished with a book, which he produced and which contained the above quoted name under which he did business; that all of the customers knew him as Byers; that he advertised in the newspapers and telephone directory under the above described name and style; and that his bank accounts were in the name of Frank Byers and he used this name in signing all his checks. From 1936 to 1946 he had purchased five insurance policies insuring his fife under the name of Frank Byers, designating as beneficiary his wife, who was described as Polly B. Byers. His elder child, who was nine years of age, was enrolled in a public school as Harvey Byers. The petitioner’s uncle had been named Philip Byers since he became a citizen over twenty years ago. The petitioner’s brother William and his wife changed their names to Byers by virtue of a decree of the Probate Court in an adjoining county on January 15, 1947. The Probate Court of Middle-
The judge made no findings of fact, and the decree dismissing the petition imports the finding of all subsidiary facts necessary to support it. Birnbaum v. Pamoukis, 301 Mass. 559, 561. Marshall v. Landau, 308 Mass. 239, 241.
The statute, G. L. (Ter. Ed.) c. 210, § 12, authorizes the granting of a petition for change of name if found by the' judge to be “for a sufficient reason consistent with public interests.” The dismissal of the petition implies a finding that there was no such reason shown by the petitioners. We. have a report of the evidence and can find the facts for ourselves, and can make findings in addition to those made by the judge and findings contrary to those made by him if we are satisfied that his findings are plainly wrong. Flower v. Billerica, 320 Mass. 193. Gordon v. O’Brien, 320 Mass. 739. 265 Tremont Street, Inc. v. Hamilburg, 321 Mass. 353. Jays Inc. v. Jay-Originals Inc. 321 Mass. 737. Saragan v. Bousquet, ante, 14. White v. White, ante, 30. Mullins v. Riopel, ante, 256.
A similar petition brought by Buyarsky alone was dismissed after a hearing in 1940. The grounds for this decision do not appear. The instant petition was dismissed on May 2, 1947. It may be, as indicated by questions put by the judge to the petitioner, that he dismissed the petition because he found that there had been no material changes in the petitioner’s situation since the dismissal of the previous petition. The petitioner, however, was not seeking to vacate the decree • entered in 1940. He was seeking to maintain a new-petition, which he filed nearly seven years after the first one. He would be estopped to contend that he then was entitled to have the court decree a change of his name to Byers. He could not relitigate any issues settled in the previous proceeding but the events occurring since 1940 could not have been adjudicated on the first petition, and the first petition did not bar the maintenance of the present petition. Burlen v. Shannon, 99 Mass. 200. Foye v. Patch, 132 Mass. 105. Gerrish v. Gerrish, 249 Mass. 219. Binney v. Attorney General, 259 Mass. 539. Watson v. Berman, 302 Mass. 305. Cochrane v. Cochrane, 303 Mass. 467.
The final decree is reversed, and a decree is to be entered granting the petition.
So ordered.