Industrial Nat. Bank of R. I. v. Isele
| Decision Date | 10 March 1967 |
| Docket Number | Nos. 57,58,s. 57 |
| Citation | 101 R.I. 734,227 A.2d 203 |
| 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. Jeffrey A. ISELE et al. Appeal |
| Court | Rhode Island Supreme Court |
These two bills in equity were brought in the superior court for the construction of a will and a deed of trust of Maurice A. Gagnon, hereinafter referred to as the decedent, and for a determination of the parenthood of Jeffrey A. Isele, a minor who was born following the decedent's death on February 2, 1959, and who claims that the decedent was his father. The decedent left as survivors a widow, Sophie T., and two children, Kenneth M. and Maurice A. Gagnon, Junior. Industrial National Bank of Rhode Island, trustee under both the will and the deed of trust, is the complainant and named as respondents are Jeffrey A. Isele, Gail M. Isele, as the mother and natural guardian of Jeffrey, Kenneth who is over twenty-one, Maurice A., Junior, a minor, 1 and Sophie T., as the mother and natural guardian of Maurice A., Junior. It is represented that the named respondents are the only interested parties. Guardians were duly appointed to represent the interests of Jeffrey and Maurice, Junior, as well as the contingent interests of persons not in being and not acertainable. The two bills were consolidated for hearing both below and here and were treated there and will be considered here as if this were but a single proceeding.
The trustee seeks the answers to the following questions: (1) Is Jeffrey an after-born child of the decedent; (2) Does he take a share of the decedent's personal and household effects bequeathed in paragraph numbered 2 of his will 'to my surviving children in equal shares'; (3) Does he qualify as a beneficiary of proportionate shares of the residue of the estate under the will and of the principal of the life insurance trust which the decedent in paragraphs numbered 3a of the will and 6b of the deed of trust directed should be set aside in trust for each of his children who should be living at his death; and (4) Is he a pretermitted child within the purview of G.L.1956, § 33-6-23, and therefore entitled to a share of the decedent's estate equal to that which he would have taken had the decedent died intestate.
At the hearing in the superior court the trial justice admitted only enough evidence to establish the existence of a controversy on the paternity issue and reserved to the parties the right to present further evidence thereon at any subsequent hearing. Then, without first finding as a fact whether or not the decedent was Jeffrey's father, he found that the causes were ready for final judgment and, pursuant to § 9-24-28, as amended, he certified them to this court for our determination.
Our brief summary of the travel of the causes in no way reflects the concern of the trial justice as to the proper procedure to be followed in the peculiar circumstances of this case and his doubts as to whether a certification prior to a factual determination of the question of Jeffrey's parenthood would be premature. The transcript makes it obvious that he felt bound by a statement of ours in Horton v. Horton, 46 R.I. 492, 129 A. 499, later approved in Kershaw v. Kershaw, 84 R.I. 429, 125 A.2d 126, which he construed as precluding him from conducting an evidentiary hearing or engaging in the fact-finding process. It is to this procedural difficulty that we now turn.
It is intertwined with the legal questions concerning Jeffrey's right as a child allegedly born of the decedent out of lawful wedlock to take as a pretermitted child under the statute and his eligibility to participate in the gifts made by the decedent in his will 'to my surviving children' and in his trust deed 'to the settlor's children who shall be living at his death * * *.' Those, of course, are serious problems and the parties have a substantial stake in their solution. At this stage of the proceedings, however, the issues are neither in controversy in the legal sense nor are they justiciable, and indeed they will not become so unless and until the paternity question is resolved and even then only if it is found as a fact that the decedent was Jeffrey's father. It is only at that stage of the proceedings that Jeffrey can have any possible interest in the gifts made by the decedent to his 'children.'
A certification pending the resolution of the parenthood issue raises, therefore, the natural query of whether we are in effect being asked to answer legal questions in the abstract and to settle them for the future in what may well, depending on the ultimate resolution of the paternity question, be an advisory opinion. That, of course, is something this court will not do except upon the written request of the Governor or of either house of the general assembly, in which instances the justices are required by the judicial article of the state constitution to give their opinions.
While the parties recognize that this procedural difficulty which arises because of the apparently premature certification could have been avoided had the issue of Jeffrey's paternity been resolved prior to the will and trust deed being sent here for construction, they argue that the trial justice had no authority to engage in fact finding and that it was incumbent upon him to certify the will and deed of trust to us for construction once the pleadings were closed and the case was ready for the taking of evidence. They rely, as did the trial justice, on Horton v. Horton, supra. In that case this court at page 495 of 46 R.I., at page 500 of 129 A., said:
...
To continue reading
Request your trial
-
Advisory Opinion (Chief Justice), In re, 85-471-M
...upon the written request of the Governor or (not and) of either House of the General Assembly. Industrial National Bank of Rhode Island v. Isele, 101 R.I. 734, 737, 227 A.2d 203, 206 (1967). We are constitutionally obligated to give advisory opinions to either House of the General Assembly ......
-
Watson v. Fox
...General Assembly.” In re Advisory Opinion (Chief Justice), 507 A.2d 1316, 1318 (R.I.1986) (citing Industrial National Bank of Rhode Island v. Isele, 101 R.I. 734, 737, 227 A.2d 203, 206 (1967)). “We are constitutionally obligated to give advisory opinions to either House of the General Asse......
- Industrial Nat. Bank of R. I. v. Isele, s. 1011-A
-
Nocera v. Lembo
...these circumstances defendant's contention does not raise a justiciable issue and need not be answered. Industrial Nat'l Bank v. Isele, 101 R.I. 734, 737, 227 A.2d 203, 205-206 (1967). For the reasons indicated, the defendant's appeal is denied and dismissed, and the case is remitted to the......