Phelan v. Conron

81 N.E.2d 525, 323 Mass. 247, 1948 Mass. LEXIS 583
CourtMassachusetts Supreme Judicial Court
DecidedSeptember 22, 1948
StatusPublished
Cited by7 cases

This text of 81 N.E.2d 525 (Phelan v. Conron) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Phelan v. Conron, 81 N.E.2d 525, 323 Mass. 247, 1948 Mass. LEXIS 583 (Mass. 1948).

Opinion

Spalding, J.

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.1 The evidence is reported.

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.2

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 [250]*250would receive one ninth of the property received from William’s estate.

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.1

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 [251]*251with the respondent. She spent the winter of 1939 in California with the respondent, returning with the latter in the spring of 1940 to Danville and remaining there until 1941. Thereafter the respondent and the intestate lived together in Brookline until the latter’s death in 1944. The respondent during that period lived in furnished apartments and was there only temporarily while her son was a student at Yale College. During that period the respondent “retained . . . Cher] connections and residence and domicil” in Danville. At the time of the intestate’s death personal property belonging to her was stored in Illinois and she had an account in a bank there. The petitioner put in evidence the answers to interrogatories which he propounded to the respondent. Question 25b asked the respondent, in the event that she claimed that the intestate was domiciled in a State other than Massachusetts, to state “what facts . . . constitute a change of domicil by her to that State.” The answer was as follows: “When Mary Hines (Mrs. Dyer’s sister) died, I personally closed up Mrs. Hines’ apartment, and all of her furnishings were disposed of. Mrs. Dyer had been living with her at the time of Mrs. Hines’ death. Mrs. Dyer at that time moved out to Danville, Illinois, with me, taking with her all of her tangible and intangible possessions. After Mrs. Hines died, my home became Mrs. Dyer’s home. She was my blood aunt and had always been very close to me. She brought me up from a baby. She wanted to live with me permanently and did. After she moved to Dan-ville, Illinois, with me, all of her tax returns were filed in Illinois as were our returns, and to the best of my knowledge, she always looked upon Danville, Illinois, as being her permanent home until she died.” The intestate was seventy-nine years old when she died. On the foregoing evidence we think it plain that the intestate at the time of her death was domiciled in Illinois. This conclusion is consistent with the recitals in the decree granting administration on the estate of the intestate as well as those in the decree now before us. Her estate, which consists entirely of personal property, must be disposed of in accordance with the laws of that State. G. L. (Ter. Ed.) c. 199, § 1.

[252]*252The pertinent provisions of the Illinois statutes are found in the probate act, art. II, § 14, which, so far as material, reads as follows: “A child lawfully adopted is deemed a descendant of the adopting parent for purposes of inheritance, except that the adopted child shall not take property from the lineal or collateral kindred of the adopting parent per stirpes or property expressly limited to the body of the adopting parent. An adopting parent of a child lawfully adopted is deemed the parent of the adopted child for purposes of inheritance, except that the parent and the parent’s kindred shall take from the child and the child’s kindred only such property as the child has taken from or through either or both of the adopting parents by gift, by will, or under intestate laws with the accumulations, income, and profits thereof [emphasis supplied]. For purposes of inheritance from the child and his kindred ... a child is deemed lawfully adopted when the child has been heretofore or is hereafter declared by any court to have been adopted or has been heretofore or is hereafter declared or assumed to be adopted child of the testator or grantor in any will or deed bequeathing, devising, or giving property to the child.”

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.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re Estate of Edwards
77 Va. Cir. 351 (King William County Circuit Court, 2009)
Vallin v. Bondesson
196 N.E.2d 191 (Massachusetts Supreme Judicial Court, 1964)
Doulgeris v. Bambacus
127 S.E.2d 145 (Supreme Court of Virginia, 1962)
In Re Drumheller's Estate
110 N.W.2d 833 (Supreme Court of Iowa, 1961)
Cook v. Estate of Todd
90 N.W.2d 23 (Supreme Court of Iowa, 1958)
National Shawmut Bank v. Cumming
91 N.E.2d 337 (Massachusetts Supreme Judicial Court, 1950)

Cite This Page — Counsel Stack

Bluebook (online)
81 N.E.2d 525, 323 Mass. 247, 1948 Mass. LEXIS 583, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phelan-v-conron-mass-1948.