Vergnani v. Guidetti

• Decision Date: 27 February 1941
• Citation: 32 N.E.2d 272,308 Mass. 450
• Parties: VERGNANI v. GUIDETTI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

308 Mass. 450

32 N.E.2d 272

VERGNANI

v.GUIDETTI.

Supreme Judicial Court of Massachusetts, Plymouth.

Feb. 27, 1941.

Appeals from Probate Court, Plymouth County; Stone, Judge.

Petition by Giuseppe Guidetti, through his uncle and attorney in fact, Abdon Vergnani, against Aroldo Guidetti and others, for revocation of the appointment of administrator and for appointment of Abdon Vergnani as administrator. From a judgment granting the relief sought, Aroldo Guidetti and others appeal.

Reversed and petition dismissed.

Argued before FIELD, C. J., and DONAHUE, LUMMUS, QUA, DOLAN, COX, and RONAN, JJ.

R. G. Clark, Jr., and F. H. Balboni, both of Bridgewater, for petitioner.

F. J. Moscone and F. Leveroni, both of Boston, for respondent.

LUMMUS, Justice.

Nando Guidetti of Plymouth died intestate on March 16, 1936, leaving no real estate and personal estate of about $10,000. Representing that he left only collateral relatives, some in this country and others in Italy, a sister petitioned for administration, and on August 24, 1936, Frank Leveroni, Esq., was appointed administrator.

On September 29, 1937, Giuseppe Guidetti of Sant' Agostino, Province of Ferrara, Italy, claiming to be the only child and heir of the intestate, filed, through his uncle and attorney in fact, Abdon Vergnani of Brockton, a petition for the revocation of the appointment of Mr. Leveroni and for the appointment of Abdon Vergnani as administrator.

It is not questioned that Giuseppe Guidetti is the son, legitimate or illegitimate, of Nando Guidetti by Ziara Vergnani of said Sant's Agostino, to whom Nando Guidetti paid attentions for two years and with whom he went through a religious ceremony of marriage solemnized in church at that place on the morning of June 8, 1901, before a Roman Catholic priest. There was evidence that after the wedding the couple drove away in a conveyance that was waiting, had breakfast, and then visited the parents of the intestate.

It was possible for them to have been married civilly that morning in what in America would be called the town hall, which was across the street from the church. But though witnesses observed the religious ceremony, no witness knew of any civil ceremony. It could be inferred that the couple cohabited as husband and wife until the following morning. On the following morning the intestate departed for Plymouth in this Commonwealth,and Ziara returned alone to the house of her parents. They never saw each other again, for Ziara remained in Italy and died there about 1912, and Nando never returned to Italy from Plymouth. Their son Giuseppe was born on September 16, 1901. The intestate sometimes spoke of his wife and son as such, and both before and after coming to Plymouth declared his intention to bring Ziara to Plymouth. For some years after coming to Plymouth he wrote Ziara and sent her money, but gradually letters and remittances ceased.

The Probate Court on April 24, 1939, found that Giuseppe Guidetti is the legitimate son and sole heir of the intestate, revoked the appointment of Mr. Leveroni, and appointed Abdon Vergnani administrator. The collateral relatives appeal to this court.

The status of Giuseppe Guidetti was not affected by any legitimation after his birth, either in Italy or in America. He and his mother were in one country, and his father was in another, at all times. There is nothing in the evidence to suggest that any act was ever performed after his birth that could make him legitimate under the law of either country. His legitimacy in the eyes of the law of this Commonwealth depends upon the question whether his parents were lawfully married according to the civil law of Italy, as distinguished from the canon or ecclesiastical law of the church to which the great mass of the Italian people adhere. Gorrasi v. Manzella, 287 Mass. 165, 169, 191 N.E. 676. See also Harding v. Townsend, 280 Mass. 256, 259, 262, 182 N.E. 369;Kapigian v. Der Minassian, 212 Mass. 412, 99 N.E. 264, Ann.Cas.1913D, 535;Hanson v. Hanson, 287 Mass. 154, 157, 191 N.E. 673, 93 A.L.R. 701;Atwood v. Atwood, 297 Mass. 229, 8 N.E.2d 916;Green v. Kelley, 228 Mass. 602, 118 N.E. 235; Am.Law Inst. Restatement: Conflict of Laws, §§ 121-127, 132, 133, 137, 138; Ex parte Suzanna, D.C., 295 F. 713;Cosulich Societa Triestina Di Navigazione v. Elting, 2 Cir., 66 F.2d 534.

The Italian Code adopted in 1865 and in force in 1901 stated the requisites of marriage, by which is meant marriage according to the civil law of the Kingdom of Italy. It did not expressly declare void a marriage that did not conform to that law but did conform to the canon law of the Roman Catholic Church. In Masocco v. Schaaf, 234 App.Div. 181, 254 N.Y.S. 439, it was suggested that the Italian Code, like the statute of New York prescribing the requisites of marriage (Hynes v. McDermott, 82 N.Y. 41, 37 Am.Rep. 538;Gall v. Gall, 114 N.Y. 109, 21 N.E. 106; compare Inhabitants of Milford v. Inhabitants of Worcester, 7 Mass. 48;Commonwealth v. Munson, 127 Mass. 459, 34 Am.Rep. 411;Norcross v. Norcross, 155 Mass. 425, 29 N.E. 506;Peck v. Peck, 155 Mass. 479, 30 N.E. 74), was not to be taken as making invalid any form of marriage that was valid before the enactment of the code, as a religious ceremony according to the canon law appears to have been. But the expert testimony, and decisions cited from the highest Italian courts, show that such a construction was not given to the provisions of the Italian Civil Code, that the requisites of marriage prescribed by that code were exclusive, and that any marriage that did not conform to that code was invalid in 1901.

Experts in Italian law stated without contradiction that under the civil code of Italy as it existed in 1901 a marriage solemnized before a priest in a church was not recognized by the civil law as valid, that the issue of such a marriage was not recognized by that law as the legitimate heir of his father, and that the only marriage recognized as valid was a civil marriage celebrated in what here would be called a town hall (case communale) before a public officer. Gorrasi v. Manzella, 287 Mass. 165, 169, 191 N.E. 676. It is true that under the civil code of Italy, s. 747, if no husband or wife, ancestors, or legitimate descendants (discendenti legittimi), survive, the natural children (i figli naturali) may succeed to property. But that provision, even if it applies to illegitimate children not formally acknowledged in accordance with Italian law, does not change the status of a child as legitimate or illegitimate, but merely permits an illegitimate child to inherit under certain conditions. It can have no effect upon the present case, for the domicil of the intestate and his property were in this Commonwealth, and descent and distribution of that property are governed solely by our laws. Harding v. Townsend, 280 Mass. 256, 259, 182 N.E. 369;Rodrigues v. Rodrigues, 286 Mass. 77, 82, 83, 190 N.E. 20.

The fact that Nando and Ziara went through a religious ceremony of marriage either is prima facie evidence (see Cook v. Farm Service Stores, Inc., 301 Mass. 564, 17 N.E.2d 890) that that ceremony was lawful and sufficient; or casts the burden of proof in the sense of the burden of persuasion upon the party who contends that that ceremony was invalid. Inhabitants of Raynham v. Inhabitants of Canton, 3 Pick. 293, 297;Commonwealth v. Kennedy, 120 Mass. 387;Turner v. Williams, 202 Mass. 500, 504, 89 N.E. 110, 24 L.R.A.,N.S., 1199, 132 Am.St.Rep. 511; Finer v. Steuer, 255 Mass. 611, 621, 152 N.E. 220;Edwards v. Cockburn, 264 Mass. 112, 125, 162 N.E. 225;Riley v. Murphy, 265 Mass. 420, 164 N.E. 608;Gorrasi v. Manzella, 287 Mass. 165, 168, 169, 191 N.E. 676. But in this case we take judicial notice of the provisions of the civil code of Italy, G.L. (Ter.Ed.) c. 233, § 70; Rodrigues v. Rodrigues, 286 Mass. 77, 81, 190 N.E. 20;Eastern Offices, Inc., v. P. F. O'Keefe Advertising Agency, Inc., 289 Mass. 23, 26, 193 N.E. 837;Walker v. Lloyd, 295 Mass. 507, 510, 4 N.E.2d 306;Bradbury v. Central Vermont Railway, Inc., 299 Mass. 230, 234, 12 N.E.2d 732;Smith v. Brown, 302 Mass. 432, 19 N.E.2d 732, and we have besides the uncontradicted testimony of experts on Italian law who have referred us to code provisions and decisions of the highest Italian courts showing that the religious ceremony had no standing under the civil law of Italy as it existed in 1901. Eastern Offices, Inc., v. P. F. O'Keefe Advertising Agency, Inc., 289 Mass. 23, 26, 193 N.E. 837. We think that the respondents have met any obligation that was on them to show that the religious ceremony was insufficient under the law of Italy.

The only theory upon which Giuseppe Guidetti can take the estate is that his parents were married by a civil ceremony. The burden is upon him to prove a valid civil marriage, for to inherit he must establish that he is the lawful heir or next of kin.

The decisive question, whether Nando and Ziara were ever lawfully married by a civil ceremony, is a pure question of fact, with the burden of proof on the petitioner. The case comes here on findings of fact made by the judge, and a full report of the evidence. Questions of fact as well as of law, are open for our consideration. Rodrigues v. Rodrigues, 286 Mass. 77, 80, 190 N.E. 20;Trade Mutual Liability Ins. Co. v. Peters, 291 Mass. 79, 195 N.E. 900;Comstock v. Bowles, 295 Mass. 250, 3 N.E.2d 817;Spiegel v. Beacon...