Opinion
No. 11–P–631.
2012-05-21
Alice E. FERRARI v. Adele L. PASKEVICH, executrix.
By the Court (COHEN, GRAINGER & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Alice E. Ferrari, daughter of the decedent, Adele K. Paskevich, appeals from an order and a decree of the Probate and Family Court, the order finding that the decedent was domiciled in Massachusetts at the time of her death, and the decree appointing the decedent's other daughter, Adele L. Paskevich, as executrix of the estate. Based on the careful and detailed findings of the trial judge, we affirm.
“Domicil has been defined as ‘the place of one's actual residence with intention to remain permanently or for an indefinite time and without any certain purpose to return to a former place of abode.’ “ Caffyn v. Caffyn, 441 Mass. 487, 492 (2004), quoting from Tuells v. Flint, 283 Mass. 106, 109 (1933). Where a person is domiciled is a question of fact for the judge and the length of residence in a State is but one relevant consideration in making that determination. Caffyn, supra, citing Kennedy v. Simmons, 308 Mass. 431, 434–435 (1941). A judge's determination of domicil will not be reversed unless it is clearly erroneous. Cerutti–O'Brien v. Cerutti–O'Brien, 77 Mass.App.Ct. 166, 169 & n. 3 (2010).
The judge's decision that Massachusetts remained the decedent's domicil, despite her physical presence in a Florida nursing home over the last nearly eleven years of her life, was based on comprehensive findings. The judge specifically found that the decedent was not competent to change her domicil when she left Massachusetts for Florida at the behest of her guardian, and that finding is supported by the evidence. Further, the judge also found that even if the decedent had been competent to change her domicil, it was always her intent to move back to Massachusetts once she had recuperated. This also was supported by the evidence. She retained two properties in Massachusetts, bank accounts, and her personal property, bringing only a small suitcase to Florida. She was a nursing home resident throughout her stay in Florida and under the care of her guardian, a Florida resident. On this record, we cannot reasonably conclude that the judge's finding that the decedent retained her Massachusetts domicil was clearly erroneous. See Tuells v. Flint, 283 Mass. at 111.
In appointing Adele the executrix of the decedent's estate, the judge honored the appointment made in the decedent's will. If the person named is suitable for the office, the judge is obliged to appoint her. Grossman v. Grossman, 343 Mass. 565, 568 (1962). A person is suitable to be an executrix if she has “the capacity and the will to discharge the duties in the particular case with fidelity and efficiency.” Id. at 568. The judge expressly found that Adele did not deliberately delay producing the will and that she has taken no position hostile to the estate. In addition, although the judge recognized the existing hostility among the decedent's three children, and particularly between Alice and Adele, the judge noted that such hostility may be avoided by working through the parties' counsel. The judge further considered the benefit to the estate of avoiding yet another independent fiduciary. The judge concluded that Adele, who is willing to serve without compensation, is suitable to complete the administration of this straight-forward estate with reasonable promptness. The judge was not plainly wrong. Osborne v. Craig, 251 Mass. 169, 171–172 (1925). Cefalo v. Cefalo, 359 Mass. 756, 757 (1971). See also Grossman, 343 Mass. at 568–569.
The plaintiff's argument that the Probate and Family Court was required to give full faith and credit to the steps the Florida courts had taken to administer the decedent's estate is unavailing. “[I]t is thoroughly settled that the constitutional provision that full faith and credit shall be given in each State to the judicial proceedings of other States, does not preclude inquiry into the jurisdiction of the court in which the judgement is rendered, over the subject-matter, or the parties affected by it, or into the facts necessary to give such jurisdiction.” Tuells v. Flint, 283 Mass. at 113 (internal citation omitted). Indeed, here the record reflects that the Florida court has stayed the Florida action pending the Probate and Family Court's determination as to domicil. We discern no full faith and credit issue.
Finally, Alice claims that Adele's attorney should have been prevented from representing her because in 2003 he served as a guardian ad litem to the decedent to review inventory reports and accountings. Alice has failed to provide relevant record cites or legal authority to support her argument or clearly articulate the perceived conflict. The judge addressed the issue more than once and concluded there was no conflict but took the precaution of ensuring that there was substitute counsel should the attorney be called as a witness. On the limited record presented on this issue, we discern no error.
Order entered February 25, 2008, affirmed.
Decree appointing Adele L. Paskevich as executrix affirmed.