87 Ky. 1 | Ky. Ct. App. | 1888
delivered the opinion oe the court.
In October, 1882,' Elizabeth Masters, being then a resident of Campbell county, Kentucky, and the owner of certain real estate therein, made her will. She went to Louisiana in October, 1883, where she remained until her death in February, 1884. After the execution of the will, but prior to going to Louisiana, she sold, the real estate to a citizen of Campbell county, taking, his notes for the purchase money, and securing their payment by a mortgage lien upon the land' sold. ' These notes and the mortgage she took with'her to LouisL ana, and they were there in her possession .when she died. The debtor lived' in Campbell county, and the property in lien was there. The will was probated in the Campbell County Court on April 21, 1884, and the appellant, who was nominated as executor, qualified as such in said court in October, 1884, and subsequently brought this action. .
The facts are to be gathered from the admissions-of the pleadings, as no testimony was taken by either side. It is averred in the petition, among other matters, that the testatrix was, when she died, a resident of Campbell county, but temporarily in Louisiana ; and that “sometime in 1884, in the court of Louisiana having probate jurisdiction,” her sister, Anna Smith, was appointed and qualified as her administratrix, and thereafter she as such representative sold the notes and mortgage to
The appellant insists that upon the pleadings the burthen was upon Smith and wife to show by evidence that the domicile of the testatrix was at her death in Louisiana and not in Kentucky ; while they with equal confidence assert that the appellant was bound to prove the reverse of this, and that in any event he voluntarily, by the affirmative averments in his petition, assumed the onus as to the question, and can not now be heard to say that it was not upon him. The lower court was of the opinion that the burden rested upon the appellant, and, therefore, dismissed his action.
The validity of the will can not under our law be questioned in this manner, nor can the proceedings in the Campbell County Court be assailed collaterally, save upon the ground of want of jurisdiction. Both
As the petition merely avers that the Louisiana ap- , pointment was made in 1884, without stating the precise date, it must, under the rule that the presumption is against the pleader, be taken as having been made prior to the Kentucky county court proceedings; but this can make no difference if, under the pleadings, the burden rested upon, the appellees to show by evidence that they were cor am non judice. If in point of fact the absence of the testatrix was temporary, and her domicile- at the time of her death in Kentucky, then beyond question its court had jurisdiction.
It has been said in general terms in some of the cases heretofore in this court that the judgment of a county court ’ probating a will cannot be collaterally questioned ; but this, of course, is where the court has jurisdiction. The case now in hand turns altogether on the pleadings.
Whenever there is a presumption as to the existence of a fact,, he who asserts the contrary must prove it.
The proceedings of a county court in this State in matters of probate and administration are not conclusive as to the jurisdiction. It may.be called in question by proper averments. But in such matters it is not a court of special or limited, but of exclusive and general- jurisdiction. It is unlike a case where the existence of jurisdiction depends upon the existence of certain facts. In such a case they must appear to confer it. Where, however, the jurisdiction' over a mat
The judgment is reversed, and cause remanded for-further proceedings in conformity to this opinion.
