Industrial Nat. Bank of R. I. v. Isele

• Court: Rhode Island Supreme Court
• Writing for the Court: JOSLIN
• Citation: Industrial Nat. Bank of R. I. v. Isele, 273 A.2d 311, 108 R.I. 144 (R.I. 1971)
• Decision Date: 29 January 1971
• Docket Number: Nos. 1011-A,s. 1011-A
• Parties: INDUSTRIAL NATIONAL BANK OF RHODE ISLAND, Trustee under Life Insurance Trust Agreement of Maurice A. Gagnon v. Jeffrey A. ISELE et al. INDUSTRIAL NATIONAL BANK OF RHODE ISLAND, Trustee u/w of Maurice A. Gagnon v. Jeffery A. ISELE et al. ppeal, 1012-Appeal.

Page 311

273 A.2d 311

108 R.I. 144

INDUSTRIAL NATIONAL BANK OF RHODE ISLAND, Trustee under Life Insurance Trust Agreement of Maurice A. Gagnon v. Jeffrey A. ISELE et al.

INDUSTRIAL NATIONAL BANK OF RHODE ISLAND, Trustee u/w of Maurice A. Gagnon v. Jeffery A. ISELE et al.

Nos. 1011-Appeal, 1012-Appeal.

Supreme Court of Rhode Island.

Jan. 29, 1971.

Alan P. Cusick, Providence, for plaintiff.

Albert B. West, Edward P. Manning, Providence, for Maurice A. Gagnon, Jr.

James Cardono, William J. Counihan, Jr., Pawtucket, for Gail M. Isele, now Gail M. Leddy, and on behalf of Jeffery A. Isele.

Harry Goldstein, Abraham Goldstein, Providence, for Kenneth M. Gagnon.

Edward Bromage, Jr., Providence, guardian ad litem for persons unknown.

OPINION

JOSLIN, Justice.

These causes were certified by the Superior Court pursuant to G.L.1956, § 9-24-28, for the construction of the will and an inter vivos deed of trust of Maurice A. Gagnon, deceased. ¹ They are here for the second time. In the earlier proceeding we were asked to determine whether Jeffrey A. Isele, a child allegedly born of the decedent our of lawful wedlock, qualified either to participate in the gifts which the decedent made to his 'children' in his will and in his inter vivos trust, or to take as a pretermitted child under § 33-6-23. We refused to answer those questions pending a resolution of whether or not the decedent was in fact Jeffrey's putative father. Accordingly, we remanded to the Superior Court with direction to determine initially whether in the context of these causes, it or the Family Court had jurisdiction to decide the parenthood issue and whether the statute of limitations applicable in filiation proceedings controlled; and only then to hold an evidentiary hearing and to resolve the conflicts on the fatherhood question. Industrial National Bank v. Isele, 101 R.I. 734, 227 A.2d 203. After the Superior Court had complied with out mandate, the causes were ready for entry of final decrees, and were certified to this court for our determination.

We believe that the Superior Court correctly found that it had jurisdiction to decide whether Jeffrey was the decedent's illegitimate son, and that its consideration of the parenthood question was not barred by the statute of limitations. The jurisdictional problem arose because § 14-1-5(C), as amended by P.L.1961, chap. 73, sec. 14, ² as well as § 8-10-3 as enacted by P.L.1961, chap. 73, sec. 1, and § 15-8-3 as amended by P.L.1961, chap. 73, sec. 14, vested the Family Court with exclusive original jurisdiction to determine the paternity of any child allegedly born out of wedlock. That statutory grant of power, notwithstanding its apparent exclusivity, conferred upon the Family Court no broader authority in this area than had formerly been exercised by those courts to whose jurisdiction the Family Court succeeded upon its creation in 1961. Petition of Loudin, 101 R.I. 35, 37, 219 A.2d 915, 917; Rogers v. Rogers, 98 R.I. 263, 269, 201 A.2d 140, 141; State v. Zittel, 94 R.I. 325, 180 A.2d 455. Those courts passed upon paternity only in filiation proceedings, and it was never the practice in this state that the resolution of a paternity issue arising as an incident of litigation properly within the jurisdiction of another tribunal should be deferred by that tribunal pending a referral and a determination of that issue by the Family Court's predecessor. There was, therefore, no reason why the Superior Court should have yielded to the Family Court on the paternity issue in these causes. Whether or not the decedent was the putative father had to be resolved in order to effectuate the jurisdiction in the construction proceedings, and the issue of paternity was properly cognizable in those proceedings by the Superior Court, even though it would have been beyond its jurisdiction to entertain a bastardy proceeding. In exercising that jurisdiction the Superior Court correctly decided the limitations period was that which controls in the construction of wills and trusts, rather than that which applies in filiation proceedings.

In addition to deciding the jurisdictional and the limitations questions, the trial justice also heard the conflicting evidence on the paternity issue. He found that the claim that Jeffrey was the decedent's illegitimate child had not been established by clear and convincing evidence. That finding is not challenged as lacking in evidentiary support, or as bottomed upon an oversight or a misconception of material evidence. Instead it is argued that the quantum of proof required to establish paternity in these causes should be the preponderance of evidence standard required in a bastardy proceeding. Oliveira v. Santosuosso, 102 R.I. 362, 230 A.2d 864. While it is true that the issue of paternity is just as critical in these causes as it would be in a bastardy proceeding, the similarity between the two situations stops there. In a bastardy proceeding the issue is whether a living defendant is the parent of a child born out of wedlock. That defendant is, of course, available to assist and to participate in the preparation and trial of the case. Here, however, the putative father-the...