277 Mass. 468 | Mass. | 1931
Frederick T. Currie, his wife, Annie H. Currie, and their only child, Dorothy Currie, then about twenty-four years of age, all of Boston, lost their lives in a common disaster as a result of the capsizing of a power boat, the “Pirate,” in which they were cruising. In the settlement of their estates the order in which they died was important and that question was raised by three petitions in the Probate Court — a petition by the administrator with the will annexed of the estate of Mr. Currie for partial distribution, a petition by William J. Holmes as administrator of the estate of Mrs. Currie to strike from the record in her estate the appearance of the administrator with the will annexed of the estate of her husband, and a petition by said Holmes as administrator of the estate of Dorothy Currie to strike from the record in her estate the appearance of the administrator with the will annexed of the estate of her father. On the petition for partial distribution of the estate of Mr. Currie a decree was entered ordering distribution and excluding therefrom the wife and daughter of the deceased. On the other petitions decrees reciting in each case that Annie H. Currie and Dorothy Currie died simultaneously in a common disaster and that both of them pre
No error is disclosed. The decrees followed necessarily from the finding that Mr. Currie survived his wife and daughter and this finding, since not plainly wrong in the light of other findings and of the evidence reported, must stand. Ball v. Hopkins, 268 Mass. 260, 265. Collis v. Walker, 272 Mass. 46, 47.
In each of these proceedings survivorship was a fact to be proved by direct evidence or by inference from the circumstances of the disaster. There was no presumption that any victim of the disaster survived any other, based on age, sex or physical condition, though such facts, so far as material, were to be considered in connection with the other circumstances of the disaster. Coye v. Leach, 8 Met. 371. Robson v. Lyford, 228 Mass. 318, 327. Young Women’s Christian Home v. French, 187 U. S. 401, 410. Wigmore on Ev. (2d ed.), § 2532, and cases cited. See also Fuller v. Linzee, 135 Mass. 468.
The “Pirate” set out from Marblehead Harbor for Boston at about four o’clock in the afternoon of July 4, 1928, with five persons on board — Mr. and Mrs. Currie, Dorothy Currie, Albert E. Morris, and his sister, Margaret Morris. A violent storm arose between four o’clock and half past four when the boat was in the open sea. The wind, blowing a full gale, came off shore, striking the boat on its starboard side. It rained hard. Mr. Currie was at the wheel and the others went down into the cabin. The boat listed to port, and Mr. and Miss Morris came on deck and jumped overboard on that side. Then the boat capsized, turning completely over. The dead bodies of Mr. and. Mrs. Currie were
It is not disputed that Mr. Currie was alive and struggling in the water after the boat capsized. Furthermore, the evidence amply warranted the findings of the judge that Mr. Currie “was an average swimmer, one who could keep afloat at least half an hour,” that when he was seen struggling in the water he had his slicker on, that when his body was found, at least one and one half hours after the boat capsized, he had no slicker on, and that it was difficult for a person in the water to remove a slicker. These findings warranted the judge’s inference that Mr. Currie lived long enough after the boat capsized to do this difficult thing. Miss Morris testified that as Mr. Currie was struggling in the water he was in contact with the rail of the overturned boat and appeared to be making a conscious effort to get under the boat. There was evidence that when his body was found floating near the overturned boat one leg was tied to the gangway stanchion on the starboard side of the boat by a line three or four feet long fastened with a half-hitch, and that this line was not long enough to have been so tied when he was at the wheel. The judge inferred from this evidence and from evidence relating to Mrs. Currie, hereinafter referred to, that Mr. Currie “was trying to get under the Pirate to save his wife,” that after the “Pirate” capsized he lived long enough, not only to take off his slicker, but also “to tie a half-hitch in the strand of rope about the gangway stanchion and his leg,” and that he “thus secured himself that he might renew his efforts to release Mrs. Currie and not be washed away by the heavy sea.” Despite the arguments as to the difficulty and unwisdom of his so tying himself to the stanchion, we cannot say that these inferences were plainly wrong.
The conclusion that Mr. Currie survived his wife was not plainly wrong. The representative of her estate contends
The conclusion that Mr. Currie survived his daughter was not plainly wrong. The judge found that “Mrs. Currie and Dorothy were drowned simultaneously,” and stated that he was “not satisfied that . . . [Dorothy] emerged from the cabin before the Pirate capsized.” There was no evidence whatever that she reached the deck before the boat capsized and it was a warrantable inference from her position in the cabin, and from the rapidity with which the boat capsized, that she did not do so. There was testimony from which it could have been found that there was enough breathable air in the cabin after the boat capsized to sustain the life of one or two persons for a much longer time than Mr. Currie lived. There was testimony, also, that it would be “possible” for a person to preserve his life for some length of time in the cabin after the boat capsized. As, however, according to the evidence, it would be necessary for such person to reach and maintain a position on the underside of the cabin roof — then upturned — in water over three feet deep, in a cabin less than ten feet wide and less than seven feet long, with fixed seats on each side and a table in the center filling a considerable part of the area, it is apparent that a finding that Dorothy Currie survived the capsizing of the boat was not required, or even warranted. We think, moreover, that on the evidence the judge was justified in concluding that it was more probable that she did not survive the capsizing of the boat than that she did, and consequently was warranted in finding affirmatively that her father outlived her. Such an affirmative finding was not necessarily precluded by the evidence that it was possible that a person might have remained alive in the cabin after the boat capsized. Navien v. Cohen, 268 Mass. 427.
So far as, in these proceedings, there was a burden of proving that either Mrs. Currie or her daughter survived Mr. Currie, it is clear that it was not sustained, but, so far as
We treat questions relating to the conduct of the trial not briefed or argued by the appellants as waived.
The decree on the petition for distribution is to be modified by awarding to the appellants costs and expenses of the appeal, determined by the Probate Court, to be paid out of the estate of Frederick T. Currie, and thus modified is affirmed. The other decrees are affirmed. .
Ordered accordingly.