Flaherty v. Whitin

Braley, J. The petition, which is in conformity with G. L. c. 201, § 16, alleges, that the respondent by reason of advanced age and mental weakness has become incapacitated [179] to properly care for his property, “ Wherefore your petitioner, a friend of said Arthur F. WTiitin, prays, that some suitable person be appointed conservator of the property of said Arthur F. Whitin agreeable to the law in such case made and provided, and that the statements herein contained are true to the best of his knowledge and belief.” It was signed, verified, and filed by the petitioner, and, a citation having issued, the respondent appeared by counsel, who, without assigning any reasons therefor, moved that the petition be dismissed. The court of probate on the face of the record had jurisdiction of the parties and of the subject matter of the petition. G. L. c. 201, §§ 16,17. See § 21. The record is bare of any further recitals except the decree, which, after stating the substance of the petition, concludes, “ It appearing that said petitioner is not a friend of said Arthur F. Whitin within the true meaning and intent of Section 16 of Chapter 201 of the General Laws of said Commonwealth, and therefore has no right to institute this proceeding. It is decreed that said petition be and the same is hereby dismissed.” The petitioner, who appealed, contends that the dismissal of the petition was erroneous because no hearing was given. It cannot be said as matter of law that there was no hearing. The wording of the decree plainly indicates that a hearing was had on the question whether the petitioner was a “ friend ” of the respondent as required by the statute. The inquiry as to his personal relations with the respondent was one of fact, and there being no report of the evidence, nor report by the judge of the material facts found by him as provided in G. L, c. 215, § 11, the finding is conclusive. O’Neill v. O’Neill, 231 Mass. 258, Hale v. Blanchard, 242 Mass. 262, Burns v. Hovey, 242 Mass. 363. G. L. c. 215, § 12; c. 214, §§ 24, 25; c. 231, § 125. Decree affirmed.