Decrees affirmed. These are appeals from decrees of the Probate Court dismissing a petition for revocation of its decree for allowance of a foreign will, and dismissing a petition for appointment of an administrator. The evidence is reported. There is no report of the material facts. The decedent was born in Lawrence, Massachusetts, and practised medicine in New York City for at least thirty years prior to 1959 during which time he made annual visits to Lawrence. On April 8, 1959, while unmarried, he executed a will in New York under which, after certain directions and several specific bequests, he left all the rest, residue, and remainder of his estate to his "dear friend and fiancee, Sarina Faro." She was also named as his executrix. On October 25, 1959, he married Sarina Faro in Lawrence, Massachusetts. The testator died on February 8, 1960, in Methuen, Massachusetts. His will was allowed in the State of New York and subsequently allowed in Massachusetts as a foreign will. The transcript contains over 700 pages of testimony and shows substantial support for the judge to have concluded, as we conclude, that the testator was domiciled in New York at the time of his death. Under the law of the State of New York the will was not revoked by the testator's subsequent marriage. Decedent Estate Law of the State of New York, Section 35. The admission in evidence of a certificate showing that the testator appeared to be a registered voter in the New York elections held in November, 1956, and November, 1958, if error, was not prejudicial. The foregoing obviate any requirement for us to discuss the other issues raised by the petitioner.
[Note 1] The companion case is by Sadie Scanlon Ryan against Sarina Faro Warden & others.
Decree affirmed. This is an appeal from a dismissal without prejudice, of a petition
in equity brought to determine title to certain real and personal property. The parties, husband and wife, had been separated by a decree of the Probate Court. Thereafter, a first petition to determine title brought by the petitioner herein was succeeded by a substituted petition to which a demurrer, filed on grounds of multifariousness, was sustained. There followed this petition. Interrogatories were filed by both parties but not answered by either. The respondent filed an answer, a demurrer, and a motion to amend his answer. No action had been taken on the demurrer or the motion to amend the answer when the petitioner moved for an order dismissing her petition. See Kempton v. Burgess, 136 Mass. 192 . The motion was allowed. The matter is governed by Hollingsworth & Vose Co. v. Foxborough Water Supply Dist. 171 Mass. 450 . It was therein stated at p. 451, "The plaintiff can have his bill dismissed, as a matter of absolute right, without a decision upon the merits, if no decree or order has been entered in the case." That is the situation here. Nothing has occurred in this case which entitles the respondent, on equitable grounds, to have the suit finally disposed of on the merits. The parties are essentially in the position in which they were when suit was commenced. See Bolton v. Van Heusen, 249 Mass. 503 ; Gulesian v. Newton Trust Co. 302 Mass. 369 . That the respondent in his answer may have alleged a counterclaim does not serve to change this position. Shea v. Lexington, 290 Mass. 361 , 373. The counterclaim is unaffected. Bordonaro v. Vandenkerckhaven, 322 Mass. 278 , 282.