263 Mass. 549 | Mass. | 1928
This is an appeal from the appointment on November 3,1927, by the Probate Court of an administrator
According to the agreed statement of facts the will of Piscopo was allowed in the Belknap County Probate Court of New Hampshire on September 25, 1926. Appeals were taken from the allowance of the will. “These appeals were withdrawn or dismissed on the 31st day of May, 1927.” The “will. . . has been finally allowed.” “No duly authenticated copy of the will of said Benjamin Piscopo and of the proceedings relative to its allowance has ever been filed in any probate court in Massachusetts.”
It is not contended by the appellants that the testator had no assets in this Commonwealth. “A debt due to the intestate from any party having a domicil in this state, or any demand or right, requiring legal authority for its enforcement, is sufficient to give jurisdiction for such an appointment.” Merrill v. New England Mutual Life Ins. Co. 103 Mass. 245, 247, 248. Harrington v. Brown, 5 Pick. 519, 522. Vinton v. Sargent, 195 Mass. 133.
By G. L. c. 215, § 3, probate courts have jurisdiction to grant administration on the estates of persons who die out of the Commonwealth leaving an estate to be administered here. G. L. c. 193, § 1, provides for the person to be appointed administrator of the estate of a person who dies intestate. G. L. c. 192, §§ 9, 10, 11, relates to the allowance of foreign wills. Assuming that the petitioner is the proper party to apply for administration, the Probate Court had jurisdiction to appoint him. See Prescott v. Durfee, 131 Mass. 477. In that case an administrator had been appointed in the domicil of the intestate and an administrator was also appointed in this Commonwealth; it was said by Gray, C.J., at page 478; “The object of appointing an administrator is not to determine the rights of parties interested in that estate, but to have a legal representative of the estate of the deceased within the Commonwealth, against or through whom those rights may be asserted.” Whether the de
As there were assets of the deceased in tMs Commonwealth the Probate Court could appoint an admimstrator; and the judge could find that the petitioner was a creditor. The petitioner contended that the father of the deceased from 1890 to 1902 deposited with the deceased property to the amount of $140,000, consisting of real and personal property, in trust “for the members of” the father’s family; that Gaetano Piscopo, the father, died in 1903, and “at that time AnMe Piscopo Bianco, daughter of Gaetano, had died, leaving” as her only cMld the petitioner; that the wife of Gaetano died in 1918, and when Gaetano died he left four cMldren living and there were no grandcMldren who were cMldren of deceased cMldren except the petitioner. If there was a valid trust as contended by the petitioner and he was a beneficiary thereunder, see Sheedy v. Roach, 124 Mass. 472, then he could be considered a creditor under the statute granting to probate courts jurisdiction to appoint a creditor the administrator of an estate of a deceased person. “According to the liberal construction given to tMs statute, one is a creditor witMn the meamng of it, who has a cause of action against the deceased wMch by law survives.” Smith v. Sherman, 4 Cush. 408, 412. “To furmsh creditors with an adequate remedy in such cases, the statute makes the court of probate the avenue through wMch they may be enabled to enter the courts of law, and there seek and obtain their legal remedy. But it was never intended that questions of tMs sort should
In the opinion of a majority of the court the decree is to be affirmed.
Ordered accordingly.