Drohan v. Avellar
| Citation | 177 N.E. 583,276 Mass. 441 |
| Parties | DROHAN v. AVELLAR et al. BATES v. ROSE et al. |
| Decision Date | 12 September 1931 |
| Court | United States State Supreme Judicial Court of Massachusetts |
OPINION TEXT STARTS HERE
Report from Probate Court, Plymouth County; Loyed E. Chamberlain, Judge.
Separate petitions by William C. Drohan, opposed by Arogo Jose F. Avellar and others, and by Minot H. Bates, opposed by Mary S. Rose and another, for the probate of the will and for the administration on the estate of Manuel J. Avellar, alias Manuel Jose d'Avelar, deceased. On report after a decision in the probate court.
Order in accordance with opinion.
O. V. Fortier and W. C. Drohan, both of Brockton, for petitioners.
E. H. Fletcher and H. K. Stone, both of Brockton, for respondents.
Manuel Jose d'Avelar alias Manuel J. Avellar, died in Brockton in our county of Plymouth in May, 1928. He was for many years prior to the events to be narrated and continuously until his death domiciled in Brockton and a citizen of this Commonwealth. He left as his only heirs at law and next of kin a sister and brother living in Oakland, California, and a sister and two brothers living isn Corvo, Azores Islands. His entire estate is personal property in Brockton. While sojourning temporarily on the Island of Flores in the Azores Islands, a dependency of the sovereign State of Portugal, and there visiting relatives, he executed on August 30, 1921, in accordance with the laws of that place an instrument purporting to be his last will. The instrument was written by a notary in an official book of record of wills kept for that purpose by a notary, the officer provided by the law for that purpose, and was signed by the decedent in the presence of three subscribing witnesses known to the notary who identified to him the decedent and also verified the perfect sanity of the decedent and his freedom from all duress and coercion. The notary under the Portuguese law is a public officer named for life by the government whose functions, among others, are ‘to make authentic testaments and to draw up the act of approbation of private wills.’ The instrument was executed with all the formalities prescribed by the laws of Portugal, including a declaration by the decedent that it was his last will. After the will was written in this official record it was read aloud in the presence of the witnesses to the decedent. The instrument under the laws of Portugal would need no further action in that State to make it an effectual disposition of so much of the estate of the decedent as was subject to disposition by him. The original book in which the instrument was written was an official record and cannot be transmitted to this Commonwealth but must remain permanently in the jurisdiction of its original execution. A true and attested copy of that official record made in the Portuguese language, duly authenticated by the officer having custody of it, and a true and correct translation into English from the Portuguese language are presented with the petition asking for its allowance as the last will of the decedent. The question is whether this petition can lawfully be granted.
The Probate Court of Plymouth County had original jurisdiction of the proof of the will of the decedent and of the settlement of his estate because he was domiciled in that county at the time of his death, G. L. c. 215, § 3. Rackemann v. Taylor, 204 Mass. 394, 397-398, 90 N. E. 552. It is provided by G. L. c. 191, § 5, that ‘A last will and testament executed in the mode prescribed by the law, either of the place where the will is executed or of the testator's domicile, shall be deemed to be legally executed, and shall be of the same force and effect as if executed in the mode prescribed by the laws of this commonwealth; provided, that such last will and testament is in writing and subscribed by the testator.’ This statutory provision plainly would authorize and require the allowance of the original of the instrument here offered for probate if produced and presented for the files of the appropriate probate court, notwithstanding the differences between the law prevailing in the place where it was executed and the law of this Commonwealth. Bayley v. Bailey, 5 Cush. 245;Crippen v. Dexter, 13 Gray, 330, 332.
The point of difficulty arises from the fact that the original...
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