1 A.2d 721 | Vt. | 1938
George H. Holden, a legal resident of, and domiciled in, the State of Florida, died testate on June 17, 1937, in that State. His estate consists entirely of stocks, bonds, mortgages, notes and bank deposits. For several years previous to his demise all of this property was in the custody and charge of his son, George J. Holden, of Burlington, Vermont. Among the bonds are those of foreign governments, and of municipalities and corporations organized and having principal offices in States other than Vermont or Florida. The stocks are in part those of corporations so organized, and in part of Vermont corporations. Of the mortgages one is upon real estate in Vermont, the other upon real estate in Florida. The notes are the obligations of a Florida corporation, secured by stock in that company. The deposits are in banks, situated in Burlington. George J. *63 Holden kept the securities in safe deposit in Burlington, collected the income, forwarded to the testator such part thereof as was sufficient for the latter's needs, and kept the balance on deposit. He also had custody of the will, which appears to have been executed according to the laws of Vermont and of Florida, and concerning which execution no question is made.
The beneficiaries of the estate are the widow, Harriet C. Holden, of Orlando, Florida; George J. Holden and the two children of the latter, of Burlington, Vermont. The executors named in the will are George J. Holden and Dewitt C. Miller, of Orlando, Florida.
After the death of the testator, George J. Holden, over the protest and objection of Dewitt C. Miller, presented the will for probate to the probate court for the district of Chittenden. Miller and Mrs. Holden moved to dismiss the petition for probate upon the ground that, since the testator was a resident of, and domiciled in, Florida, the appropriate court of that State is the tribunal having primary jurisdiction, and proper and orderly procedure requires the instrument to be submitted there in the first instance; and that, although the items composing the estate are physically present in Vermont, the probate court here has only ancillary jurisdiction, which is confined to the stocks of Vermont corporations, the mortgage upon Vermont real estate, and the money on deposit in Vermont banks.
Upon hearing, the motion to dismiss was denied, and the instrument admitted to probate. The cause comes here upon the appeal of Dewitt C. Miller and Mrs. Holden. No proceedings have been commenced in Florida.
Generally speaking, a will should be submitted in the first instance to the forum at the domicile of the testator. Hyman v.Gaskins, 5 Ired. Law 267,
Statutes of this nature, varying in expression but alike in substance, have been enacted in other states, and in applying them it has been held that the appropriate court of a jurisdiction in which assets of the estate of a nonresident testator are found may grant probate upon his will, even though the will has not been presented for probate in the state of his domicile. Knight v. Hollings,
It is merely the application of the principle that "every state has plenary power with respect to the administration and disposition of the estates of deceased persons as to all property of such persons found within its jurisdiction." In re Clarke'sEstate,
Rackemann v. Taylor,
It is undoubtedly true, as is stated in the Restatement, Conflict of Laws, sec. 469, comment c, that "a court in its discretion will ordinarily postpone action insofar as the will concerns movables until the court at the domicile has acted, if proceedings in the domicile for probate are pending at the time the application for probate is made in the other state." But in the case before us there are no proceedings pending in Florida and the *66
jurisdiction to allow the will is specifically conferred by statute (P.L. 2725). In a like situation and under a similar statute it was said in In re Fischer's Will,
The existence of assets within the probate district of Chittenden is the jurisdictionary fact in this case. It is argued by the appellee that all the various items of intangible property have their situs here, but it is not necessary for us to decide this question. It is conceded by the appellants, and properly so, that the stocks in Vermont corporations, the mortgage upon Burlington real estate, and the deposits in Burlington banks are, for administrative purposes at least, situated within the district, and this is enough to justify the admission of the will to probate. Whether this jurisdiction is primary or ancillary is for present purposes beside the point. It is enough that it exists.
The apprehension entertained by the appellants that if probate is granted here there will be difficulty in obtaining it in Florida appears to be groundless. By the statutes of that State (Laws of Florida, Acts 1933, Ch. 16103, sec. 72; Acts 1935, Ch. 17171, secs. 2 and 3), of which we may take judicial notice (Acts of 1937, No.
A second ground of appeal is that the act of one of the named executors in the will in filing the instrument for probate against the objection and protest of the other was null and void, since when there are two or more executors they are considered in law as one person, and must act jointly in matters requiring judgment, and so no jurisdiction to entertain the proceedings was conferred upon the court. But neither person was an executor at the time, and could not be such until appointed and qualified after proof and allowance of the will. The appellees cite P.L. 2759, which provides that if a person has the custody of a will, he shall, within thirty days after he knows of the death of the testator, deliver the will into the probate court *67 which has jurisdiction or to the executor named in the will. P.L. 2760 requires a similar course of action by the executor so named. Whether these sections are to be construed as referring to wills of nonresident testators leaving property within the probate district, we need not inquire. It is enough to say that the act of George J. Holden in presenting the instrument to the probate court for the district of Chittenden did not, under the circumstances, fail to confer jurisdiction upon that court.
Decree affirmed. To be certified to the probate court for thedistrict of Chittenden.