234 P. 258 | Mont. | 1925
This cause was submitted to the trial court upon an agreed statement of facts, from which it appears that on October 12, 1921, Grace Lydia Coppock, a citizen of the United States residing in China, made and published her last will and testament and three days later died at Shanghai, leaving as her only heirs at law a sister, Ida J. Wharton, and two brothers, Charles E. Coppock and Ed. G. Coppock. Her estate consists principally of personal property in Fergus county, Montana, and the proceeds of a life insurance policy. By the terms of the will Miss Margaret Mackinlay, of Shanghai, was nominated executrix to have charge of the estate in China, and Ed. G. Coppock was nominated executor to manage the estate in this country. Aside from some inconsequential items, all of the property was bequeathed to the National Committee of the Young Women's Christian Association of China in trust for charitable and benevolent purposes.
The will was first admitted to probate by the United States district court for China and letters testamentary were issued to Miss Mackinlay. Later a duly authenticated copy of the will and probate thereof was presented to the district court of Fergus county, and such proceedings were had under the provisions of sections 10040 and 10041, Revised Codes, that the will was admitted to probate and letters were issued to Ed. G. Coppock. Ida J. Wharton and Charles E. Coppock then instituted this proceeding to secure a revocation of the order admitting the will to probate in Fergus county, but a judgment was rendered dismissing the contest, and they appealed.
It is too well settled to be open to further controversy that[1, 2] if the court which admitted the will to probate in the *434
first instance had jurisdiction of the subject matter, its judgment is conclusive as to the validity of the will. (State exrel. Ruef v. District Court,
Counsel for both parties assume that under the common law which is enforced by the United States court in China, the jurisdiction to administer primarily upon an estate depends upon the domicile of the deceased at the time of his death (23 C.J. 1010), and for the purpose of this appeal we adopt that theory even in the broad terms stated.
It is a general rule that the place of one's residence is[3, 4] prima facie the place of his domicile (Ennis v.Smith, 14 How. (U.S.) 400,
Vattel defines "domicile" as "a fixed residence in any place with an intention of always staying there." (Vattel's Law of Nations, Chitty's ed., 103.) Story observes: "It would be more correct to say that that place is properly the domicile of a person in which his habitation is fixed without any present intention of removing therefrom." (Story on Conflict of Laws, p. 43.) Whether we accept one or the other of these definitions, or the more elaborate one given by Dicey (Dicey, Conflict of Laws, 789), it is apparent at once that neither the doctrine of immiscibility nor the doctrine of extraterritoriality — factors stressed by the English courts in the earlier decisions — enters into the proper conception of the term "domicile." The authorities are all agreed that the two essential elements are residence and the intention to make the place of residence the home.
We are satisfied that an American citizen may acquire a domicile in China, and it may be said fairly that there is not now any authority to the contrary. We agree with the result reached in In re Allen's Will and Mather v. Cunningham, and conclude that Miss Coppock could establish a domicile in China and did so, so far as disclosed by the record before us. It follows that the United States court of the district of China had jurisdiction to render the judgment admitting the will to probate.
Although the property here involved is actually present in[5] Fergus county, its legal "situs" is in the place of the owner's domicile at the date of her death, under the familiar maxim, "Mobilia sequuntur personam," and section 7069, Revised Codes of 1921, provides that the validity and interpretation of a will, so far as the disposition of personal property *437 is concerned, are governed by the law of the testator's domicile, and this is the general rule. Section 7015, Revised Codes of 1921, has not any application.
The ground of the contest fails, and the judgment is affirmed.
Affirmed.
MR. CHIEF JUSTICE CALLAWAY, ASSOCIATE JUSTICES STARK and MATTHEWS and HONORABLE C.W. POMEROY, District Judge, sitting in place of MR. JUSTICE GALEN, absent on account of illness, concur.