Rodrigues v. Rodrigues

• Decision Date: 02 April 1934
• Citation: 286 Mass. 77,190 N.E. 20
• Parties: RODRIGUES v. RODRIGUES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

286 Mass. 77

190 N.E. 20

RODRIGUES

v.RODRIGUES.

Supreme Judicial Court of Massachusetts, Essex.

April 2, 1934.

Appeal from Probate Court, Essex County; White, Judge.

Petition by Carrie S. Rodrigues, administratrix of the estate of Manuel S. Rodrigues, wherein Maria das Augustias Rodrigues filed a petition praying that she be joined as a party respondent. From a decree granting a motion that the appearance of respondent be struck from the record, she appeals.

Affirmed.

J. M. Marshall, of Gloucester, for petitioner.

F. E. Knowles, V. Jean Deponte, Jr., and A. Andrade, all of Taunton, for respondent.

RUGG, Chief Justice.

The petitioner was appointed administratrix of the estate of Manuel S. Rodrigues by decree of the Probate Court for our county of Essex on January 5, 1931, upon her petition, which recited that he died intestate, a resident of Gloucester in said county, leaving as his only heirs at law and next of kin herself as his widow, a resident of Gloucester, and Joseph S. Rodrigues, his father, a residentof Fayal, Azores Islands. On October 18, 1932, the respondent, Maria das Angustias Rodrigues, of Horta, Azores Islands, filed a petition in the case reciting that she was a daughter of the deceased, born out of wedlock, and legitimized by a court of competent jurisdiction in the county of her residence, whereby she is an heir at law of the deceased, and praying that she be joined as a party respondent. The petitioner filed a motion that this petition be denied and that it and the respondent's appearance be stricken from the records. After a hearing upon this motion the judge found these facts: The deceased was a native of the Azores Islands and lived there until March, 1907, when he came to America, established a domicil in Gloucester in this Commonwealth and lived there continuously until his death on December 18, 1930. He and the petitioner were lawfully married at Gloucester in 1912 and thereafter lived together as husband and wife until his death. Both were citizens of the United States. No children were born of this marriage. The deceased, prior to his departure from the Azores Islands, had illicit relations with a woman who, on or about May 22, 1907, gave birth to a child. The respondent is that child, now grown to maturity. The deceased never married the mother of the respondent. After leaving the Azores Islands, the deceased never returned there and never again saw the mother of the respondent. He never saw the respondent herself. Before his marriage to the petitioner he told her of the birth of the respondent and acknowledged that he was the father of the respondent. Further findings are in these words: ‘The laws of Portugal, ‘Codigo Civil Portuguese,’ apply to and are in force in and throughout the Azores Islands. By the provisions of these laws an action is permitted to investigate paternity of an illegitimate child, where such child is ‘in possession of the State.’ ‘The possession of the State consists of the fact of a person having been reputed and treated as their child by the parents and of having been reputed as their child by the public.’ ‘By reason of the plaintiff prevailing in the action of legitimation the child shall have the rights provided in Article 31 from the commencement of the proceeding.’ It appeared, by duly authenticated copy of the record, that an action in accordance with the foregoing provision was instituted November 16, 1931, in the Court of Justice in the District of Horta (Azores Islands) in which the plaintiff was the said Maria das Angustias Rodrigues, single and of age, of said Horta, and the defendant was José Silveira Rodrigues, of said Horta, (the father of the decedent, Manual Silveira Rodrigues), which action went to ‘Sentence’ on January 6, 1932, to the effect that said Maria das Angustias Rodrigues ‘must be considered, judged and declared as an illegitimate daughter of the late Manual S. Rodrigues for all and any legal purposes and specially for obtaining all the rights mentioned’ in the provisions of the laws applicable to such cases, heretofore quoted.' The entire record of that action in translation was in evidence at the hearing.

Upon all the evidence it was found and ruled by the judge in the present proceeding that the claim of the respondent ‘for legitimation, namely, to be deemed the legitimate child of the decedent and thereby to participate in the distribution of his estate, depends upon the law of’ this Commonwealth as the domicil of the decedent and that since he and the mother of the respondent had never intermarried, the claim of the respondent must be dismissed. It was decreed that the respondent was not a legitimate child of the deceased and that she was not a party in interest in the settlement of his estate, and that the motion of the petitioner be granted. The case comes before us on the appeal of the respondent with report of the evidence, which was partly oral and partly documentary. The motion should be granted unless the lespondent is the legitimate child of the deceased.

In the consideration of appeals of this nature the general equity rule prevails. This court examines the evidence and decides the case according to its judgment, giving due weight to the finding of the judge. His decision on matters of fact depending on oral evidence will not be reversed unless plainly wrong. His interpretation of documentary evidence may be revised. Finer v. Steuer, 255 Mass. 611, 622, 152 N. E. 220;Edwards v. Cockburn, 264 Mass. 112, 120, 162 N. E. 225;Lindsey v. Bird, 193 Mass. 200, 201, 79 N. E. 263. The finding of the judge as to the law of Portugal was supported by a translation offered by the respondent subject to the exception of the petitioner. It purports to be a translation of a ‘code’ or ‘decree’ of December 25, 1910. That was more than two years after the deceased left the Azores Islands and took up his residence in Gloucester. It is difficult to understand how his status or his estate in this Commonwealth can be affected by such a law. No other translation was offered or presented to the attention of the trial judge. In favor of the respondent and for the purpose of this decision, this translation is accepted as true without considering the question how and to what extent parties must enlighten the court to the end that judicial notice may be taken under G. L. (Ter. Ed.) c. 233, § 70, of the law of a foreign country not accessible in English. See Richards v. Richards, 270 Mass. 113, 119, 169 N. E. 891;Seemann v. Eneix, 272 Mass. 189, 196, 172 N. E. 243;Universal Adjustment Corporation v. Midland Bank, Ltd., 281 Mass. 303, 327, 184 N. E. 152, 87 A. L. R. 1407;Lennon v. Cohen, 264 Mass. 414, 421, 163 N. E. 63. The case of the respondent is accepted as she presented it...