Minkler v. Woodruff

12 Neb. 267 | Neb. | 1882

Cobb, J.

This case turns upon a single point. The plaintiff fails to state in his petition that the deceased, Arthur Roy Minkler, was domiciled in the county of Gage at the time of his death. Such an allegation is necessary, not ■only to give the district court of Gage county jurisdiction to distribute the estate of the deceased, but as a substantive fact, necessary to be plead with the others, in order to make out a cause of action.

If Arthur Roy Minkler had his domicile in Gage county at the time of his decease, and having died intestate, leaving personal estate, the district court of that county had jurisdiction to adjudicate its distribution. In such case the distribution must be made in accordance with the laws of this state; under which the deceased, having neither wife, children, or the issue of a child, his father would be his sole heir at law, and if necessary, could bring suit in the proper court of Gage county to have such estate decreed to him, and could, make the proper persons parties to such suit wherever they might be. But all this depends upon the domicile of the deceased at the time of his death. That is the capital fact of the case, and it is left out of the petition. The allegation in the petition that the deceased died in Gage county, does not supply the place of an allegation that he was domiciled there, although it may be, that for some purposes,in the absence of a suggestion to the contrary, a person will be presumed to be domiciled where he may be shown tobe in point of fact; but here the plaintiff brings a suit against non-residents of the state, and as it is apparent that his right to a recovery in such suit, nay, that the jurisdiction of the court over it, depends upon this fact, surely it should be presented in a manner to enable the defendants to deny it, if so advised.

The judgment of the district court is affirmed.

Judgment Affirmed.