Gaboriault v. Gaboriault, 1613.

• Decision Date: 02 November 1942
• Docket Number: No. 1613.,1613.
• Citation: 28 A.2d 744
• Parties: GABORIAULT et al. v. GABORIAULT et al.
• Court: Rhode Island Supreme Court

28 A.2d 744

GABORIAULT et al.

v. GABORIAULT et al.

No. 1613.

Supreme Court of Rhode Island.

Nov. 2, 1942.

Bill in equity by Oliva Gaboriault and others against Ezechias Gaboriault, executor, and others for construction of a will. By agreement of the parties, the case was certified to the Supreme Court pursuant to Gen. Laws 1938, c. 545, § 7, for hearing and final decree.

Cause remanded to Superior Court for further proceedings.

Woolley, Blais & Quinn, of Pawtucket, for complainants.

R. deBlois LaBrosse, of Pawtucket, for respondents.

CONDON, Justice.

This is a bill in equity for the construction of a will, which was certified by the superior court to this court pursuant to General Laws 1938, chapter 545, § 7, as being ready for hearing for final decree. According to the decree, it was heard by the superior court "by agreement of the parties * * * upon bill, answer and replication" and thereupon was certified for the construction of certain clauses of the will of Marie Gaboriault and also for determination of the question of the status of Aime Lavallee as a party complainant. The determination of such question, we are informed by the respondents in their brief, "is the very essence of this proceeding, and said Aime Lavallee's absence is the principal cause hereof, since, were he here and capable of acting, all the questions which are here raised could be solved by the joint actions of all the parties."

Complainants allege in their bill that they bring it for themselves "and upon behalf of Aime Lavallee, unmarried, who is without the confines of the United States and whose exact whereabouts is unknown"; and they further allege that communication with him has been impossible for more than a year and will, in all probability, continue to be impossible for a long time to come, and also that "his interest in the present litigation * * * is identical" with their interest and that "the relief herein sought for them will be equally as beneficial to him " Respondents admitted in their answer the fact of Aime Lavallee's absence as above alleged in the bill and the impossibility of communicating with him, but they neither admitted nor denied the identity of his interest with that of the other complainants nor that the relief sought by the bill would be equally beneficial to him, and left the complainants to their proof. Further answering, they denied that Aime Lavallee was a proper party complainant, but alleged that he was "a necessary party and should be made a party defendant and that service of process against him should be made in such manner as the Court might order, and that it is necessary that a guardian ad litem...