Home BERTHA A. KEEZER vs. DAVID M. KEEZER.

359 Mass. 752

May 4, 1971

The petitioner seeks to cancel a separation agreement between herself and the respondent, her husband, and to cancel and rescind a deed signed by her. In her petition she alleged coercion, undue influence, and fraud on the part of the respondent. In addition, by amendment to the petition, she added charges of failure of consideration, unfairness and unreasonableness of the agreement, and its invalidity as contrary to public policy. The testimony of the two parties conflicted as to the circumstances under which the petitioner consented to the agreement. A probate judge, crediting the respondent's testimony, found "no evidence of fraud, undue influence, duress or coercion," on the part of the respondent. He further found that the petitioner was not misled or deceived by the respondent and that she executed the separation agreement and the deed "freely and voluntarily, with full understanding of the provisions therein." The evidence is before us and a review of it does not indicate that the judge was plainly wrong.

Decree dismissing petition affirmed.

Home NELLIE POPE, administratrix, vs. MOORE-MCCORMACK LINES, INC.

359 Mass. 752

May 4, 1971

The declaration in this action of tort and contract contains five counts. A demurrer was sustained to count 5, and the other four counts were disposed of after trial by jury. Count 5 was brought under the Death on the High

Page 753

Seas Act, 46 U. S. C. Sections 761 et seq. (1964), and the ground of demurrer was that Federal Courts have exclusive jurisdiction of actions under that act. Boudreau v. Boat Andrea G. Corp. 350 Mass. 473 , 475-476. We are now asked to overrule the Boudreau case as inconsistent with a dictum in a footnote in the subsequent opinion in Moragne v. States Marine Lines, Inc. 398 U.S. 375, 400, n. 14. See Forde, Concurrent Jurisdiction of State and Federal Courts in Actions Under the Federal Death on the High Seas Act, 1969 Trial Lawyer's Guide 27; Am. Law. Inst., Study of the Division of Jurisdiction between State and Federal Courts, Section 1316 and Commentary, pp. 34-35, 236 237. We do not think that dictum is sufficiently clear to induce us to overrule the Boudreau case. Count 5 does not purport to state a claim under nonstatutory Federal maritime law, even if such a claim could now be tried in a State court. The defendant's claim that the jury verdict on count 2 renders count 5 moot is left for a court having jurisdiction of the claim stated in count 5.

Exceptions overruled.