316 Mass. 112 | Mass. | 1944
This is an appeal by John C. Swinford from a decree adjudging that he and Julia Daly Welch were the only first cousins and next of kin of John J. Donovan who died intestate in Boston on June 6, 1941. Swinford appeals on the ground that Mrs. Welch was not a cousin of the intestate. Mrs. Welch died before the petition was heard, and James H. Welch, the administrator of her estate, has become a party to these proceedings.
No question is now raised but that Swinford was a first cousin of John J. Donovan, but it is important in determining the correctness of the finding that Mrs. Welch was a first cousin to ascertain the facts that the judge must have found in coming to the conclusion that Swinford was a first cousin. We have a transcript of the evidence, but the judge made no report of the material facts.
In finding that Swinford was one of the next of kin, the judge must have found that John Daly married Kate Hogan in Ireland and that Julia Daly was their daughter; that Julia Daly came to America, married Cornelius Donovan in 1853, and lived with him until his death in 1860; that three children, Joanna, Cornelius and John J. Donovan, the intestate, were born of this marriage; that after the death of John Daly his widow, Kate Hogan Daly, married Timothy Nihan and that Mary Catherine Nihan was their daughter; and that she afterwards married and was the mother of the appellant Swinford. It is now settled that the mother of the intestate and Mrs. Swinford were half sisters. There was also testimony that, besides Julia Daly Donovan, John Daly and Kate Hogan Daly had two other daughters, Ellen Daly who married a McCarthy, and Mary Daly, and two boys who died in infancy. Ellen, Julia and
We now consider the evidence upon which the judge found that Julia Daly Welch was also a first cousin. Mrs. Welch was born on Purchase Street, Boston, in 1867, the daughter of Michael Daly and Joanna Daly who were married in 1852. |Her claim to kinship to the intestate is that his mother, Julia Daly Donovan, was a sister of her father, Michael Daly. Mrs. Welch had five brothers and five sisters. The listings of the directory supplemented by birth and death certificates of her brothers and sisters, several of whom died in infancy, showed that her parents up to the time of the death of her father in 1871 had lived at various dwellings, all in the same immediate neighborhood.
The daughter and a son of Mrs. Welch testified that their mother had told them that her father, Michael Daly, had but one sister, Julia Daly Donovan; that she was named after her; that she visited her by going through the back yard; that she stayed over night with her aunt; and that Joanna Donovan had given her a doll when she was a young child. If she ever visited the Donovans there is no question that the visits ceased before Mrs. Welch married in 1900. Mrs. Welch worked in Boston up to two or three days before her death and, although she lived in Boston, she never heard from the Donovans and thought they were dead. She did not learn of the death of Cornelius Donovan or of John J. Donovan until a genealogist, so called, visited her on August 1, 1941, and had her sign a contract by which he was to receive one third of what she obtained if she was successful in proving her relationship to Donovan. This genealogist disappeared during the hearing and the
There is little to the claim of Mrs. Welch outside of her alleged declaration to her two children. Her alleged statement that Julia Daly Donovan was the only sister of her father, Michael Daly, is contradicted by the death certificates of Ellen Daly McCarthy, of Catherine Swinford and of Julia Daly Donovan herself. It is contradicted by the finding of the judge that the appellant was a first cousin because that finding could not have been based upon any ground other than that Julia Daly Donovan and Catherine Swinford were the daughters of Kate Hogan Daly Nihan. Moreover, the death' certificate of Michael Daly gives his father’s name as John Daly and the maiden name of his mother as “Margaret-.” There was no evidence whatever that Kate Hogan was ever known as Margaret. The two children of Mrs. Welch who testified stated that their mother never told them the name of her father’s mother. One of them testified that she had seen the death certificate of Michael Daly and considered it a weakness in the case, and the other testified that he did hot know whether it was correct in stating the name of his grandfather’s mother as Margaret, but that he did not “know anything to the con
If the case were to be decided on the oral evidence alone it would be difficult, in the face of a great mass of material facts disclosing the relatives of the intestate, most of which are undisputed and which strongly tend to negative the claim of Mrs. Welch, to arrive at the conclusion reached by the judge. If he believed the children of Mrs. Welch that she made the alleged statements about the relationship of her father to Julia Donovan, he was in no better position than we are to determine what credibility should be given to these statements. It is strange that the intestate so far as appears never mentioned Mrs. Welch and that those who unquestionably were his relatives never heard of her. Mrs. Welch, so far as the record goes, never mentioned or saw any of them. They were all strangers to her children. The alleged statement of Mrs. Welch that her father was a brother of Julia Daly Donovan or that she was his only sister is not supported by a single official record but in fact is contradicted by every official record pertaining to the relatives of either. Inferences from the basic facts shown by the testimony are open to revision on appeal. In our opinion an inference that Michael Daly was the son of Kate Hogan Daly is not supported on the evidence. Newburyport Society for the Relief of Aged Women v. Noyes, 287 Mass. 530, 532. Vergnani v. Guidetti, 308 Mass. 450, 456. Veazie v. Staples, 309 Mass. 123, 127. Malone v. Walsh, 315 Mass. 484. New England Trust Co. v. Commissioner of Corporations & Taxation, 315 Mass. 639. See also Butterick Publishing Co. v. Fisher, 203 Mass. 122, 132; Yankee Network, Inc. v. Gibbs, 295 Mass. 56, 59; Plumer v. Luce, 310 Mass. 789; Hinckley v. Barnstable, 311 Mass. 600, 602.
The final decree must be modified by striking out the words “and James H. Welch as he is Administrator of the estate of the late Julia Agnes Daley Welch, a first cousin,”
Ordered accordingly.