Holyoke v. Haskins

22 Mass. 20 | Mass. | 1827

Wilde J.

delivered the opinion of the Court. The principal points made in this case were settled, and we think rightly settled, in the case of Cutts & al. v. Haskins, 9 Mass. R. 543. On the same facts now disclosed, it was decided that the domicil of Silence and Sarah Eliot, at the time of their decease, was in the town of Natick in the county of Middlesex ; that the power of granting administration of their estates appertained exclusively to the judge of probate of that county ;¹ and consequently, that the grant of administration by the judge of probate for the county of Suffolk, and the subsequent proceedings thereon, were merely void.

That the proceedings and judgment of a court not having jurisdiction of the subject matter depending, are coram non judice and void, is a position too well established to be controverted. All acts done by ministers of justice without authority are a nullity. Case of the Marshalsea, 10 Rep. 76. If administration be granted upon the supposition that no will exists, and a will afterwards appear, all the proceedings under the administration are void. Toller, 120. And if the bishop grants administration and there are bona notabilia in divers dioceses, such administration is absolutely void. 5 Rep. 30, Prince’s case. It is true that if the metropolitan grant administration within his province, although it does not belong to him, it has been held to be voidable only, becausf he has jurisdiction over his province ; but if he grant admim tration of goods in another province, it is void. 5 Rep. 3t Moore, 145, 693. So the grant of an original administration more than twenty years after the death of the intestate, is ipso facto a nullity. Wales v. Willard, 2 Mass. R. 120. If then, in the present case, the judge of probate for the county of Suffolk had no jurisdiction, it seems clear that the grant of administration, and the subsequent sale of the demanded premises under it, are void. And it is equally clear, that he had not jurisdiction, if the domicil of the intestates, at the time of their decease, was in fact within the county of Middlesex.1

The question of domicil is one of more difficulty, and has been argued on new ground, not noticed in the case of Cutts et al. v. Haskins. It has been strongly urged, that according to the facts reported, the legal domicil of the two Eliots still continued in Boston, the place of their births, notwithstanding their removal to Natick, and their long residence there ; because, by reason of their mental disability, they had not, it is said, the power to acquire a new domicil. By the civil law, minors retain the domicil of their parents at the time of their decease, although they afterwards remove with the consent of their tutors, curators, or relations ; because they are not permitted to change the order of their succession to personal property, which depends on the law of domicil. 3 Encyc. Jurispr. 804, tit. Domicile ; 2 Domat, 487, Pub. Law, bk. 1, tit. 16, § 3, art. 10. It is not however clear that the same disability, by the civil law, attaches to a person non compos. But admitting that it does, it is a principle not binding here ; for the reason on which it is founded fails, and it does not appear to have been adopted as a principle of the common law. Here the right of inheritance is not changed by any change of domicil within the State, nor is the settlement of estates affected thereby. We cannot therefore suppose that the legislature had any reference to the principles of the civil law, for the purpose of limiting or defining the jurisdiction of the judges of probate. We consider the statute as referring to the actual domicil of the deceased, and not to the right of domicil; and it is very clear that the actual domicil of the deceased was in Natick. There they dwelt and had their home, and there alone were they liable to be taxed for their personal property.

If it were admitted that idiots, and persons wholly bereft of understanding, are incapable of changing their domicil, it would not follow that the same incapacity would attach to all degrees of mental imbecility. There are those, and not a few, who may be unable to manage their property and other concerns with good judgment and discretion, and may need guardians to protect them from imposition, and who nevertheless have sufficient understanding to choose their homes. It is not necessary, however, in this case, to rely upon any such distinction, because, I apprehend, it is clear that by our laws a guardian has the same power over his ward, that a parent has over his child. He has the custody of his person, and may appoint the place of his residence. The domicil therefore of an idiot may be changed by the direction, or with the assent, of his guardian, whether express or implied.¹

It has been also objected, that the demandant’s action is barred by the 12th section of St. 1817, c. 190,² but this section applies only to sales made subsequently to the passage of the act. It could not be construed to extend to sales made more than six years previous, without a violation of vested rights.

Another objection is, that the demandant’s action is barred by lapse of time, more than twenty years having elapsed since the grant of administration ; so that no new administration can now be granted. But no authority has been cited in support of this objection, and it is opposed to the case of Griffith v. Frazier, 8 Cranch, 9, in which letters of administration, being durante absentia of the executor, and a sale by the administrator, were declared void, more than twenty years having elapsed after the grant of administration and the subsequent sale. The grant of administration being void, the case stands on the same footing as though no administration had been granted, and the pretended administrator had acted without the semblance of authority.

Again it is said, as a writ of error will not lie to reverse a judgment after twenty years, so the decree of a judge of probate, after the same lapse of time, should be held valid. But there is a distinction between void and voidable acts ; and besides, writs of error are limited by statute, (10 & 11 Will. 3, c. 14,) so that the supposed analogy fails.

It was contended lastly, that twenty years’ possession is a good foundation for the presumption of a grant. But a grant will not be presumed nor prescription allowed, except as to incorporeal hereditaments.¹ In a writ of right nothing short of forty years’ possession will avail. To decide otherwise would be to repeal the statute of limitations. The tenants’ title is merely a title by possession, and cannot be aided by any legal presumption, for the question of domicil being determined, the jury having established the fact that the last domicil of the deceased was within the county of Middlesex, the judge of probate in Suffolk had no jurisdiction ; and nothing can be presumed in favor of his proceedings ; nor can lapse of time render an act valid, which was originally void. Q,uod ab initio non valet, tractu temporis non conva~ lescit.

Upon the whole, therefore, there seems to be no legal ground on which the tenants’ tide can be supported, and nothing appears, in any view of the case, to bar the demand-ant’s action.

Verdict set aside and a new trial granted.

1 See Revised Stat. c. 64, § 3.

1 See Story on Confl. of Laws, 417, 44, n. 5; Guier v. O’Daniel, 1 Binney, 349, note; Potinger v. Wightman, 3 Merivale, 67; 2 Kent's Comm (3d ed.) 927, n. a; Upton v. Northbridge, 15 Mass. R. 239

2 See Revised Stat. c. 71, § 37.

1 See Clark v. Faunce, 4 Pick. (2d ed.) 246, n. 1; Matthews on Presump. 283, n. 1.

It is enacted by the Revised Statutes, that the jurisdiction assumed in .any case by the judge of probate, so far as it depends on the place of residence of any person, shall not be contested in any suit or proceeding what ever, except in an appeal from the probate court in the original case, or when the want of jurisdiction appears on the same record c. 83, § 19.