Dicenso's Case

Reardon, J. The insurer appeals from a final decree of the Superior Court awarding the claimant widow total de [109] pendency compensation. The reviewing board had affirmed and adopted the findings and decision of the single member awarding such compensation. The employee died while at work as a result of a cave-in in a water filled trench. The claimant widow resides in Italy. The employee had been married to her in Italy on July 31, 1948, following the death of his first wife. The employee had four children by his first wife and lived with them in a house in Sulmona, Italy, which in company with them he inherited from her, until one by one the children and he emigrated. The employee came to the United States in 1953. The house is a small house and produces no income. The claimant widow was of uncertain health and did no income producing work. From time to time between March 21, 1958, and March 21, 1964, the employee sent money orders in modest amounts to his wife and returned to Italy on three occasions to live with her. It had been agreed that he should come to live and work in the United States with the thought that when he reached sixty-five years of age he could return to five permanently with his wife in Italy. His last visit to his wife was in December, 1964, and he came back to the United States in March, 1965, some two and a half months before his death. It was stipulated that the employee had a joint savings account with the claimant in the Charlestown Savings Bank in the amount of $9,289.91, which was closed by the administrator of the employee’s estate in August, 1965, and that the widow, who was not working, was living in the house to which reference has been made. It was also stipulated that he did not desert the claimant. There was evidence of a second bank account in the name of the employee. The insurer contends that the board’s finding of total dependency is not warranted by the evidence and is tainted by error of law. General Laws c. 152, § 32 (a), establishes a conclusive presumption of total dependency for support when a wife is either living with her husband at the time of his death or, alternatively, is living apart from him for justifiable cause or because he has deserted her. Here the [110] separation of husband and wife was by mutual agreement and no presumption arises. Di Clavio’s Case, 293 Mass. 259, 262-263. The burden of proving dependency in this case thus shifts to the claimant. Roney’s Case, 316 Mass. 732, 733-734. Cellurale’s Case, 333 Mass. 37, 39. The record in this case is not sufficient to v/arrant the finding that the expense of residence in the jointly owned house by the widow was being met solely by the employee. See Derinza’s Case, 229 Mass. 435, 445-447. Furthermore, it is silent on whether on his last visit to his wife the employee had made further contributions to her support and whether the account in the Charlestown Savings Bank reflected any withdrawal activity which might provide information relative to additional contributions by the employee not disclosed in the present record. While our review of the record leads us to conclude that a finding of total dependency is unwarranted, we are not satisfied that a legitimate claim on the ground of partial dependency may not be made. The decree is reversed, and the case is to be remanded to the Industrial Accident Board for such further proceedings as may enable it to make findings on partial dependency. So ordered.