CEDRIC L. ARNOLD, executor, vs. RAYMOND RONALD HELMER & others.

CEDRIC L. ARNOLD, executor, vs. RAYMOND RONALD HELMER & others.

327 Mass. 722

May 9, 1951 - September 18, 1951

Present: QUA, C.J., LUMMUS, WILKINS, WILLIAMS, & COUNIHAN, JJ.

An inhabitant of another State adopted there by the nephew of a woman who was domiciled in this Commonwealth and whose entire estate was located here did not, upon the aunt's death after the death of the nephew, take a gift to the nephew in the aunt's will under G. L. (Ter. Ed.) c. 191, Section 22, as "issue" of the nephew surviving the testatrix, and the gift lapsed.

PETITION for instructions, filed in the Probate Court for the county of Essex on August 3, 1950.

The case was heard by Phelan, J., who entered a decree that the gift in the will of Josephine D. Godfrey to Frank H. Helmer lapsed. The respondents Raymond Ronald Helmer and Frank H. Helmer, Junior, appealed.

H. R. Mayo, Jr., (T. F. Fitzgibbon with him,) for the appellants.

G. R. Morgan, for the appellees.

QUA, C.J. This petition for instruction, brought by the surviving executor of the will of Josephine D. Godfrey, late of Swampscott, raises the question whether a devise or legacy given by the testatrix in her will to her nephew Frank H. Helmer, of Merced, California, wholly lapsed when the nephew died before the testatrix, or whether it became payable to the respondents Raymond Ronald Helmer and Frank H. Helmer, Junior, as surviving issue of the deceased devisee or legatee in accordance with G. L. (Ter. Ed.) c. 191, Section 22. These respondents were adopted by the nephew many years ago in California and still reside there. It is their contention that by reason of this adoption

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they became under California law "issue" of the deceased nephew for all purposes, including that of taking under our statute devises or legacies which otherwise would lapse. The decedent was a resident of this Commonwealth and her entire estate was physically within the Commonwealth. These respondents appeal from a decision adverse to them.

The general proposition is unquestioned that the estate located here of a Massachusetts decedent must descend or be distributed in accordance with Massachusetts law. The chapter of our General Laws (Ter. Ed.) relating to adoption, c. 210, contains certain provisions affecting descent and distribution. One of these (G. L. [Ter. Ed.] c. 210, Section 9) reads, "An inhabitant of another state, adopted as a child in accordance with the laws thereof, shall upon proof of such fact be entitled in this commonwealth to the same rights of succession to property as he would have had in the state where he was adopted, except so far as such rights are in conflict with this chapter." In Cobb v. Old Colony Trust Co. 295 Mass. 338 , careful consideration was given to the construction of this section. In that case at pages 342-343 this court said, "The correct construction of said Section 9 is that the inhabitant of another State adopted in accordance with its laws is not entitled to greater rights of succession than are given by its laws, and is not entitled to greater rights of succession than are given by the laws of this Commonwealth. See Ross v. Ross, 129 Mass. 243 , 268; Nickerson v. Allen 293 Mass. 136 , 137." This is in conformity with the general rule laid down in the absence of statute by Restatement: Conflict of Laws, Section 143, "The status of adoption, created by the law of a state having jurisdiction to create it, will be given the same effect in another state as is given by the latter state to the status of adoption when created by its own law." See further Section 305 and comments.

The question then arises whether if the adoption had been in this Commonwealth these respondents, who had been adopted, not by the decedent, but by her nephew, would thereby have been brought into such a relation to the decedent that they would have taken under her will as "issue"

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of the nephew when he died before the testatrix. The answer must be in the negative. It is plain from other sections of c. 210 that under our law an adopted child does not become for all purposes the child or "issue" of the adopting parent. In our statute the intent is manifest to create a relationship or status between the adopting parent and his descendants on the one hand and the adopted child on the other hand, but in general not to force that relationship or its consequences upon other kindred. This appears from Sections 7 and 8. It was held in Gammons v. Gammons, 212 Mass. 454 , that under the predecessor of Section 8 a person in the position of these respondents whose adoption had taken place in this Commonwealth could not take under what is now G. L. (Ter. Ed.) c. 191, Section 22, as "issue" of a legatee who had adopted her and who died before the testator. See also Wyeth v. Stone, 144 Mass. 441 ; Young v. Stearns, 234 Mass. 540 . We do not read what was said in Boutlier v. Malden, 226 Mass. 479 , at pages 484-485, as impairing the authority of Gammons v. Gammons.

It follows that the decree was right.

Decree affirmed.