Raymond v. Cooke

226 Mass. 326 | Mass. | 1917

Carroll, J.

This is a petition to revoke a decree of the Probate Court of July 9, 1909, by which the respondent was adopted by Mary J. Cooke, who died September 11, 1912. In the Probate Court the decree of adoption was revoked, and the respondent appealed. In the Supreme Judicial Court a decree was ordered affirming the decree of the Probate Court revoking the adoption. The case is before us on the respondent’s exceptions.

The respondent argues that the petitioners, who are the heirs at law and next of kin of Mrs. Cooke, have no right or standing to maintain this petition. The petition was filed November 7, 1912, and states that Mrs. Cooke was of weak mind and unduly influenced by the respondent, who concealed these facts, and that the adoption was obtained by fraud practised on the court. At the time of the filing of the petition the will of Mrs. Cooke had not been allowed. The respondent contested its allowance, claiming it had been revoked by his adoption. It was finally allowed in this court May 12, 1913.

In May, 1914, the executor of the will brought a bill for instructions in the Probate Court, alleging that Thorlief S. Cooke, the respondent, claimed the whole estate as the adopted son because “insufficiently mentioned in the will as a son.” He made answer claiming the whole estate on this ground. The bill for instructions is still pending.

In April, 1915, Thorlief S. Cooke, brought an action against the executor of the will of Mary J. Cooke, claiming that in consideration of his being adopted, she agreed to leave him all her property. This action also is still pending.

The petitioners are the heirs at law and next of kin of Mrs. Cooke. They allege that fraud was practised on the Probate Court. When this petition was filed, Mrs. Cooke’s will had not been allowed. They were interested in her estate, and as such heirs and next of kin, it was to their interest to resist the claims set up by the respondent. The petitioners therefore have an undoubted right to maintain this petition. Tucker v. Fiske, 154 Mass. 574. Phillips v. Chase, 203 Mass. 556.

At the time of the adoption the respondent was thirty-one years of age and Mrs. Cooke was seventy-one. He had been married in Norway, and had had a child who died; before coming to America in 1908, he had brought proceedings for divorce. In 1908, he entered the Cookes’ home as an attendant to Mr. Cooke, who died May 22, 1909. After the death of Mr. Cooke, the respondent continued in the house with Mrs. Cooke. Without attempting to state the evidence in detail, it is apparent that she was infatuated with him; she had been an economical woman, but after he came to the house she gave him presents, consisting of a diamond ring, diamond cuff buttons and pin, gold watch and chain, and a fur lined overcoat; she bought him a motor car for which she paid $2,500, although she complained that it was not pleasant for her to ride in it, and constructed a garage costing between $700 and $800/ She lived alone with him; they went to Europe where they travelled together; she spoke of him in extravagant terms; they discussed the subject of marriage. Within two months after the death of her husband, a decree of adoption was procured without informing any of her relatives or friends of her intention. He stated he would get Mrs. Cooke "under his thumb,” and a short time after the adoption Mrs. Cooke said she had to “adopt him or marry him or he would leave, and I cannot be left alone.”

The question of undue influence has been frequently discussed. It was considered in Emery v. Emery, 222 Mass. 439, and as there stated, at page 441, “It may be produced by unceasing importunity or by the silent yet resistless power which a strong will exerts over a less forceful and resolute individuality.” There was evidence direct and circumstantial to sustain the conclusion of the single justice. The ninth request, that on all the evidence the court could not find that the adoption was procured by undue influence of the respondent, was properly refused. The single justice acted on the assumption that the seventh and tenth requests of the respondent were correct statements of law. There was no error of law in his refusal to grant the fourth, fifth and sixth requests: they were founded on detached portions of the evidence and were contrary to the facts as found by the court. Means v. Cotton, 225 Mass. 313, and cases cited.

The respondent contends that neither his answer to the executor’s bill for instructions nor his declaration in the action at law, was admissible. They both were admissible as showing the claims made by him against the estate of Mrs. Cooke. Peck v. New England, Telephone & Telegraph Co. 225 Mass. 464.

We see no error of law in the rulings made by the single justice.

Exceptions overruled.