323 Mass. 247 | Mass. | 1948
This is a petition for partial distribution of the estate of Annie M. Dyer, hereinafter called the intestate. From a decree ordering partial distribution the respondent Katherine P. Conron appealed.
The facts, most of which are not in dispute, are these: On May 15, 1905, by a decree of the Probate Court of Essex County the intestate was adopted by James Phelan and his wife, Rebecca. The intestate married John H. Dyer in 1909. Dyer died in 1933. James Phelan had eight children of his own, all of whom predeceased the intestate. The last one of these children to die was William, who died intestate in February, 1944. At the time of his death he resided in Lynn. The intestate died in October, 1944, leaving no issue. At that time neither of her adopting parents was alive. The petitioner is one of a group of nine grandchildren of James Phelan who are nieces and nephews by adoption of the intestate. One of them, the respondent Katherine P. Conron, is also a blood niece and closest kindred by blood of the intestate.
The respondent was appointed administratrix of the estate of the intestate by a decree of the Probate Court of Norfolk County dated November 22, 1944. At the time of the hearing in the court below she had received, as administratrix, the sum of $13,244.60 from the estate of William. That sum represents the intestate’s share in William’s estate. The controversy between the parties relates only to this property. The petitioner takes the position that this property is to be divided equally among the nine nephews and nieces by adoption of the intestate. The respondent, on the other hand, contends that this property should go to her as the nearest kindred by blood of the intestate. The decree appealed from ordered distribution to be made in accordance with the petitioner’s contention. Under it the respondent as a niece by adoption of the intestate
The only issue of fact which was disputed in the court below was whether the intestate was domiciled in Massachusetts or Illinois at the time of her death. If she was domiciled in Massachusetts the decree of the Probate Court, as the respondent concedes, was right. The law of Massachusetts leaves no doubt that the persons mentioned in the decree would inherit the property in question in the proportions therein stated.
The respondent contends, however, that the intestate was domiciled in Illinois at the time of her death and that under the law of that State she would be entitled to the property in question. The judge made no report of material facts, but the evidence is reported and we are in a position to find the facts ourselves. Lowell Bar Association v. Loeb, 315 Mass. 176, 178.
The evidence on this issue may be summed up as follows: The intestate was born in Salem and prior to her marriage lived in Lynn. After her marriage she lived in Lynn and Boston. She was living in Boston at the time of her husband’s death in 1933. From that time until the spring of 1939 she lived with the respondent about half of each year in Florida. When she was not in Florida she spent some time in Brookline, visited relatives at various places, and spent considerable time with the respondent who, since the spring of 1935, lived in Danville, Illinois. Shortly after February, 1938, following the death of her sister, Mrs. Hines, with whom she had been living in Massachusetts, the intestate moved out to Danville and made her home
Under the law of Illinois the status of a child adopted in another State will be recognized in Illinois “unless such status, or the rights flowing therefrom, are inconsistent with or opposed to . . . [its] laws and policy.” Van Matre v. Sankey, 148 Ill. 536, 559. Keegan v. Geraghty, 101 Ill. 26, 32. In the case last cited it was held that the rights of one adopted in Wisconsin to inherit from one who died domiciled in Illinois must be governed by the law of Illinois rather than by the law of Wisconsin. The rule in Illinois appears to be similar to the rule set forth in our own decision in Ross v. Ross, 129 Mass. 243, and to that formulated by the Americán Law Institute.
The respondent’s position in substance is that the word "through” as used in the statute means the same thing as “from” and that the petitioner and the other nieces and nephews of the intestate by adoption could inherit from her only such property as came to her directly from her adopting parents. We are of opinion that “through” is not used synonymously with “from” in the statute. The statute, as we construe it, means that when the child inherits property directly from his parent he takes “from” but not “through” such parent. When on the other hand he inherits property from a third person by reason of the relationship of that person and himself to the parent he takes “through” the parent. See Cave’s Estate, 326 Pa. 358; Berry v. Powell, 47 Tex. Civ. App. 599, 603, affirmed in 101 Texas, 55. On this construction of the statute the respondent cannot prevail. William Phelan died domiciled in this Commonwealth. Under "our law the intestate, as his sister by adoption, stood in the same position in regard to him as though she had been born to her adopting parents. G. L. (Ter. Ed.) c. 210, § 7. The relationship between each and the right to inherit from each other were through the parents. Since William left no issue his property would have gone to his father and mother, or either of them, if hying at his death. G. L. (Ter. Ed.) c. 190, § 3. But both parents were dead; consequently his property would
The decree, although it was right in permitting the petitioner and the others name,d therein to share in property that came from William’s estate, was erroneous in allowing them to share equally. If the matter were governed by the law of this Commonwealth the decree would have been right. G. L. (Ter. Ed.) c. 190, §§ 2 and 3 (5). But the result by the law of Illinois would be different. Article II, § 11, of the probate act provides that the personal property of one dying intestate shall be distributed as follows: “Fifth, when there is no surviving spouse or descendant but a parent, brother, sister, or descendant of a brother or sister of the decedent: the entire estate to the parents, brothers, and sisters of the decedent in equal parts, allowing to the surviving parent, if one is dead, a double portion and to the descendants of a deceased brother or sister per stirpes the portion which the deceased brother or sister would have taken if living.” A distribution on the basis of this statute would be as follows: Katherine P. Conron one fifth, John V. Phelan one fifth, Priscilla C. P. Johnson one tenth, James Phelan (2d) one tenth, James P. Dyer one tenth, Katherine D. O’Dowd one tenth, Louis Y. Phelan one fifteenth, Prudence M. O’Brien one fifteenth, and Micaela C. Hickey one fifteenth. The decree is to be modified so that the shares will be in these proportions and, as so modified, it is affirmed.
So ordered.
There were two appeals by the respondent, one as administratrix of the estate of the intestate and one in her individual capacity as the alleged sole heir at law of the intestate.
That arises by reason of the fact that the mother of Katherine P. Conron was a sister of the intestate and married one of the sons of James Phelan.
General Laws (Ter. Ed.) c. 210, § 7, so far as material, provides: “A person adopted in accordance with this chapter . . . shall stand in regard to the legal descendants, but to no other of the kindred of such adopting parent, in the same position as if . . . bom to him [in lawful wedlock]. If the person adopted dies intestate, his property acquired by himself or by gift or inheritance from his adopting parent or from the kindred of such parent shall be distributed according to chapters one hundred and ninety and one hundred and ninety-six among the persons who would have been his kindred if he had been bom to his adopting parent in lawful wedlock; and property received by gift or inheritance from his natural parents or kindred shall be distributed in the same manner as if no act of adoption had taken place. . . By G. L. (Ter. Ed.) c. 190, §§ 2 and 3 (5), the nieces and nephews, being of the same degree of kindred to the intestate, would share equally.
See Restatement: Conflict of Laws, § 143, which provides: “The status of adoption, created by the law of a state having jurisdiction to create it, will be given the same effect in another state as is given by the latter state to the status of adoption when created by its own law.”
The respondent argues that her construction of the statute is supported by a recent decision of the Supreme Court of Illinois (In re Estate of Tilliski, 390 Ill. 273), but a careful reading of that decision satisfies us that it did not decide the question involved here.