Lead Opinion
delivered the opinion of the Court:
1. With reference to the first assignment of error founded upon the ruling of the trial court in the arrangement of the parties, as plaintiff and defendants, respectively, it appears that there are cases in Maryland and elsewhere, in which the ruling of a trial.court in the arrangement or alignment of parties as plaintiffs and defendants, in respect of issues sent from a probate court, has been made the subject of exception, and has been assigned as error and reviewed in an appellate tribunal; but that matter has been settled for, us by repeated decisions of the Supreme Court of the United States, which have held that the ruling of a trial court on the question as to who should open and close a case is merely upon a matter of practice not proper to be made the subject of exception or to be reviewed upon writ of error. Lancaster v. Collins, 115 U. S. 222; Hall v. Weare, 92 U. S. 728; Day v. Woodworth, 13 How. 363, 370.
But even if the question were an open one, and we were not governed by these controlling authorities, we would have to hold that the contention of the appellants in this regard is untenable. The issues before the jury, while their determination would ultimately have affected the question of the validity or invalidity of the will of Hugh A. Haral’son, were addressed merely to the determination of certain preliminary questions; and neither the validity of the will nor its execution was in issue! In fact, the will itself did not figure in any manner in the proceedings before the jury.
2. But it is upon the second assignment of error that the appellants principally rely. And here they argue with great learning, force and ingenuity, that, by the refusal of the trial court to admit in evidence the record from the court of the Ordinary in Georgia, they have been denied a right guaranteed to them by the Constitution of the United States in the provision that “full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State.” The contention demands our most serious consideration.
The record of the Georgia court, it may be recalled, was offered as an estoppel upon the appellee to conclude her from denying that the deceased Haralson was a resident of the State of Georgia at the time of his death and that he had died intestate. Now, if that record operated as an estoppel, there was nothing for the trial court to do but to direct the jury to return a verdict in favor of the caveators on the issues, and nothing for the jury to do but to return such a verdict. The estoppel would have been conclusive of the whole controversy. And such in fact must have been the result, if the record is admissible at all. In the case of The Southern Pacific Railroad Co. v. United States, 168 U. S. 1, the Supreme Court of the United States, after much con
“There are some cases holding that a judgment, without being specially pleaded, is not conclusive upon the issues to which it relates, but is only persuasive evidence, and that the court is at liberty to find according to the truth as shown by all the evidence before it. But according to the weight of authority and upon principle, the former judgment, if admissible in evidence at all, is conclusive of the matters put in issue and actually determined by it. Mr. Greenleaf says correctly that ‘ the weight of authority, at least in the United States, is believed to be in favor of the position that where a former recovery is given in evidence, it is equally conclusive in its effect as if it were specially pleaded by way of estoppel.’ 1 Greenleaf on Evidence, Sec. 531. This view is in accord with the decisions of this court above cited.”
The converse of the proposition is also undoubtedly true, namely, that unless a previous judgment is conclusive as an estoppel, it is not admissible at all in evidence. For unless conclusive, it is no more than hearsay testimony. This position we do not understand the appellants to controvert. We. understand that they rely upon the decree of the court of the Ordinary in Georgia as a conclusive estoppel against the proceedings in this jurisdiction. The question then is, whether that decree does operate as such an estoppel.
At the threshold of our inquiry, it seems rather shocking to the judicial mind that the jurisdiction of a court once acquired should be divested out of it by extraneous proceedings in a foreign jurisdiction; or rather, that it should be told that it may not inquire even into its own jurisdiction, because another court, in another State, has, in an ex parte proceeding, made some finding of fact which would be inconsistent with the exercise of jurisdiction; and this, too, when it is conceded that there is property within the jurisdiction of the court which the law gives it the right and makes it its duty to administer. We can not think that there is any interstate or international comity, or any con
That nearly all the personal property of the deceased at the time of his death was situated in the District of Columbia, no one controverts, and the jury so found. By virtue of that fact, and by virtue of the filing of the appellee’s petition for administration upon the estate, that property was brought under the control and jurisdiction of the Supreme Court of the District, whether the deceased was a resident of the District of Columbia, or of the State of Georgia, and whether he died testate or intestate. It is the express provision of our statute law, that “whenever any person hath died intestate, leaving in this State (District) goods, chattels, or personal estate, letters of administration may be forthwith granted by the Orphans’ Court of the county wherein was the party’s mansion house or residence; or in case he or she had no mansion or residence within the State, letters shall be granted in the county where the party died; and in case the party neither had mansion or residence, nor died within the State, letters may be granted in the county wherein lies, or is supposed to lie, a considerable part of the party’s personal estate.” Act of Maryland of 1798, Ch. 101, Subch. 5, Sec. 2.
So that in this case the Supreme Court of the District of Columbia, exercising the powers of an Orphans’ Court, whatever may have been the fact in regard to the residence of the deceased, had the undoubted jurisdiction to grant letters of administration upon the estate in this District. And we can not for a moment assume that that jurisdiction can be ousted by the removal of the assets afterwards from this District under supposed authority from a foreign jurisdiction. The complications that may arise from such removal can not enter into our present consideration. The fact remains, and it is the only thing which we can consider in this connection, that, at the time of Haralson’s death, and at the time of the application for letters of administration in
There is no necessity to assume that the action of the
The proceeding in this case in the Supreme Court of the District of Columbia was a proceeding both in rem and inter partes. The court had jurisdiction and control, of the subject-matter; and by operation of law the res was either actually or constructively within its custody. Then all the parties in interest came in to litigate the matters in issue between them. Now, it has been repeatedly decided by the Supreme Court of the United States, that, when proceedings in rem have been commenced in a court of competent jurisdiction, and the court has acquired possession, actual or constructive, of the res, and analogous proceedings are subsequently instituted in another court of competent jurisdiction involving the same property, exclusive jurisdiction for the purpose of its own suit is acquired by the court which has first taken possession of the res; and the proceedings of the second court, with reference to those of the first, are to be
The action of the court that acquires the later jurisdiction, as we have said, is not to be regarded as null and void for all purposes. Undoubtedly the adjudication of the Georgia court in the present instance is good within the State of' Georgia, and may be the foundation even of extra-territorial rights beyond the territorial limits of that State; but against the proceedings upon the same subject-matter in the District of Columbia it can be allowed no validity by the courts of this District. The case is very different, of course, where merely personal rights between parties are adjudicated, as in ordinary actions upon contracts and torts. There only one adjudication is required upon the merits, and only to such adjudication are parties entitled. Cases of this kind stand upon a very different basis from proceedings in rem; and especially do they stand upon a different basis from proceedings for the administration of decedents’ estates. These last are in their nature local, and have, in general, no extra-territorial force, or at most only a very limited one. Aspden v. Nixon, 4 How. 467; Johnson v. Powers, 139 U. S. 156. They can give no authority to any one beyond the territorial ju-. risdiction of the courts in which they are had; and they can scarcely be held to conclude anything for other jurisdictions. To call such a proceeding one inter partes would be absurd ; to give it the force and effect of a proceeding inter partes
Moreover, there was question of jurisdiction involved here. The Supreme Court of the District of Columbia, beyond all-question, had- jurisdiction of the property which was situated here; but there was question whether it had the jurisdiction to admit to probate a certain testamentary paper-writing on file in the office of the Register of Wills for this District. That jurisdiction depended on the matter of the residence of the deceased at the time of his death. The place of residence, therefore, was a jurisdictional fact to be ascertained by the court. Can it be that a court of limited s'cope and power, like that of the Ordinary in Georgia, proceeding summarily and ex parte and outside of the course of the common law, will be permitted to determine that jurisdictional fact finally and conclusively for our courts, and practically nullify the right of trial' by jury given in our courts in such cases by statute? It is an invariable and universal feature of our judicial institutions that every court must be the judge of its own jurisdiction in the first instance, and can not be concluded by what any other tribunal, except of course an appellate tribunal, has said or done in the matter. It would be a singular anomaly in the law if the court of the Ordinary in Georgia could, by an ex parte order, determine the extent of the jurisdiction of the Supreme Court of the District of Columbia; as it would equally be an anomaly if the Supreme Court of the District of Columbia attempted to determine and limit the jurisdiction of the Ordinary in Georgia. We are satisfied that neither tribunal would attempt consciously thus to trespass upon the prerogatives of the other. And we are satisfied that, if in the present instance the court in Georgia had had its attention called to the proceedings pending in the Supreme Court of the District of Columbia, which was not done, it would certainly have stayed its hand, and would not have granted administration even to the extent to which it might
• The cases of the Southern Pacific Railway Company v. United, States, 168 U. S. 1, and Railroad Company v. Gorman, 7 App. D. C. 91, are cited by the appellants in support of their contention; but we fail to see that these cases have that effect. To the first of these cases we have already referred in this opinion upon another point. There it was held, that “a right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction, as a ground of recovery, can not be disputed in a subsequent suit between the same parties or their privies; and if the second suit is for a different cause of action, the right, question or fact once so determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first case remains unmodified.” But evidently .this rule, made, as the learned justice who spoke for the Supreme Court in that case said in the opinion, for the peace.and repose of society, applies to mátters distinctly put in issue between parties; and it can therefore have no application to ex parte proceedings, to judgments entered under statutory proceedings upon notice merely by publication and without personal service of process or some equivalent of it, or to proceedings for administrations upon the estates of deceased persons; nor can it give validity to judgments procured by fraud.
In the case of Railroad Company v. Gorman, 7 App. D. C. 91, we held that the grant of letters of administration in North Carolina could not be made the subject of collateral attack in a suit instituted by another administrator in this District, and that a certain finality was to be accorded to the action of the probate court of the foreign State. But a reference to the facts of that case will show that it can have no application to the case now under consideration. There, it is true, as in the present case, there was controversy as to
The only asset of the estate would seem to have been a claim for damages against the railroad company under the statute of North Carolina. Letters of administration were asked for and granted in the State of North Carolina; and similar letters were asked for and granted to another person in the District of Columbia, where it was also claimed that the deceased, at the time of his death, had his residence. Suit was instituted in North Carolina by the administrator appointed in that State against the railroad company, and a recovery was had or a settlement was effected in pursuance of the suit. A similar suit was instituted in this District, where the railroad company had an office and an agent, by the administrator appointed -here; and at the trial of the latter suit the proceedings and recovery in North Carolina were either introduced in evidence or pleaded as an estoppel. It was sought to attack them by a showing that the deceased was a resident of the District of Columbia, and that therefore the Probate Court in North Carolina was without authority to appoint an administrator in that State. And we held that this could not properly be done. Plainly that case differs from the present. The court of North Carolina had the undoubted right to grant administration; for the assets were there, the railroad company was there, and the act of negligence happened there. To the railroad company the administrator of the estate appointed in North Carolina was, both in fact and in law, the representative of the estate, and a settlement- with him was a discharge by the estate. Assuredly it should not be called upon to pay again in any and every State where it should happen to be suable in consequence of doing business there, and where an administrator should happen to have been appointed. The first
The question in the case now before us is not one of collateral attack on the validity of the appointment of an administrator in another State. It may be conceded that the proceedings in the court of the Ordinary in Georgia are valid for all the purposes which they may legitimately sub-serve in that State. But we do not think that they can be introduced here to determine the jurisdiction of our .own courts, and least of all to divest a jurisdiction already acquired and asserted. And we think the action of the trial court in this case in excluding them from consideration was entirely right and proper.
These views seem to us to be abundantly supported by the authorities. Johnson v. Powers, 139 U. S. 156; Aspden v. Nixon, 4 How. 467; Stacy v. Thrasher, 6 How. 44; Low v. Bartlett, 8 Allen, 259; Lindley v. O’Reilly, 50 N. J. L. 636.
In our opinion, it follows from what we have said that the order or decree appealed from should be affirmed, with costs. And it is so ordered.
Dissenting Opinion
dissenting:
I feel constrained to dissent from the opinion of the majority of the court in this case; and though I regret my inability to agree with my brothers, I shall state briefly the grounds of my dissenting opinion.
The appeal is from an order of the Supreme Court of this District holding a special term for Orphans’ Court business. The order is dated the 22d of April, 1898; and by that order a paper, declared to be the last will and testament of Hugh A. Haralson, deceased, is admitted to probate and record; and because there was no executor named in said paper, letters of administration cum testamento awnexo upon
■The facts of the case, in the order in which they occurred, are important to be borne in mind.
The deceased, Hugh A. Haralson, died in De Kalb County, in the State of Georgia, August 23, 1895. On the 14th of the same month and year, at Savannah, in the State of Georgia, the deceased executed a paper-writing purporting to be his last will and testament; but which paper was signed by the deceased in the presence of but one witness, when, by the law of Georgia, to make a will or testament valid as to personal estate, the attestation of two witnesses were required. By this paper, thus executed, the decedent attempted to dispose of certain bonds of the value of about $9,000. The legatees, to whom these bonds are given by this paper, are his sister, Mrs. Fanny H. Gordon, and his neice, Carrie L. Gordon. These bonds, at the time of the death of Haralson, were on deposit in a bank in the city of Washington,District of Columbia. The paper-writing purporting to be a last will and testament of the deceased having but one witness to its execution, was and is wholly invalid as a testamentary disposition of personal property, by the law of the State of Georgia. But, if the party executing the paper really had his domicil in this District of Columbia, at the time of his death, the paper would be valid and entitled to admission to probate here.
Upon the supposition that the deceased had his domicil here, or was a resident of this District at the time of his death, Mrs. Gordon, the legatee in the supposed will, on the 23d of January, 1896, filed her petition in the Supreme Court of this District, holding a special term for Orphans’ Court business, praying for the admission to probate and record of the alleged testamentary paper, and for the granting of letters of administration, cum testamento annexo, upon the personal estate of the deceased. By this petition, it is
To this notification parties interested appeared, and on the 6th of March, 1896, a caveat to the desired probate of the paper propounded as the last will and testament of the deceased was filed by and on behalf of the next of kin of the deceased, other than Mrs. Gordon; and against the probate of the paper propounded, three grounds were stated: 1st. That the said paper-writing is not the last will and testament of the deceased; 2d. That the deceased was not, at the time of his death, a resident of the District of Columbia; and, 3d. That at the time of his death the deceased was a citizen and resident of the State of Georgia.
Upon this caveat to the probate of the paper, the court, on the 10th of April, 1896, made up five issues to be sent to a court of law to be tried by a jury. These issues were: 1st. Whether the deceased was, at the time of his death, a resident of the District of Columbia? 2d. Whether the deceased was, at the time of his death, a citizen and resident of the State of Georgia? 3d. Whether the deceased was, at the time of the making of the paper-writing, propounded as his last will and testament, a resident of the District of Columbia? 4th. Whether the deceased was, at the time of the making of said paper-writing, a citizen and resident of the State of Georgia?
The issues thus framed were sent to the court of law to be tried, but the trial did not take place until February, 1898. The verdict of the jury was, upon the evidence submitted to them, that the deceased was, at the time of his •death, a resident of the District of Columbia, and that he was not, at that time, a citizen and resident of the State of Georgia; that the deceased, at the time of making the paper propounded as his will, was a resident of the District of Columbia, and was not, at that time, a citizen and resident of the State of Georgia; and that, at the death of the deceased, a considerable portion of his personal estate was in the District of Columbia.
This verdict was certified to the special term for Orphans’ Court business, and was made the basis of the order of the 22d of April,.1898, from which this appeal is taken.
The record shows that, on the 6th of April, 1896, just one month after the caveat filed, there was filed by Logan Bleckley, one of the next of kin of the deceased, and one of those who had filed the caveat to the probate of the paper propounded in the court in this District, a petition in the court of the Ordinary of De Kalb County, in the State of Georgia, asking for citation of the parties interested, and for letters of administration upon the personal estate of the deceased. Upon this application, at the May term of that court, 1896, an order was passed by the Ordinary, reciting the facts of the application, and that citation had been published, according to law, requiring all concerned to appear and show cause if any they could, why letters should not be granted; and, as it is declared, it appearing “ that the deceased died a.
The trial of the issues framed on the caveat did not take place until March, 1898, nearly two years after the grant of letters of administration in the State of Georgia, and more than two years after the paper had been propounded for probate. On the trial of the issues the caveatee was given the position of plaintiff on the record, and this was manifestly correct, as the onus of proof was upon her. She was required to offer affirmative proof in support of the first, third and fifth issues; and as to the second and fourth issues, the onus of proof was upon the caveators. And proceeding according to this order of proof, the caveatee offered evidence to show, according to the bill of exception, that the deceased, both at the date of the alleged testamentary paper, and at the time of his death, was a resident of the District of Columbia. And in support of the fifth issue, it was. admitted that at the time of the death of the decedent, he had on deposit in a bank, and in a loan and trust company, in this District, money and securities amounting to about $9,000, and that said money and securities constituted the entire estate of the decedent, with the exception of about $200 found outside of the District of Columbia-. It was further admitted that the money and securities so on deposit in this District, were subsequently removed from the said District by Logan Bleckley, claiming to act as administrator of the estate of the deceased, under and by virtue of the letters of administration issued to him by the Court of Ordinary in the State of Georgia. Upon this proof the caveatee rested her case..
The caveators thereupon produced and offered in evidence, to sustain the issues on their part, a duly certified transcript
The question is an important and a delicate one, and involves many and serious consequences; and to determine the question thus presented, we must look to and consider the facts involved in the issues on trial, and the nature of the j udicial proceeding offered in evidence. It may be that the effect attributed to the judicial proceeding in Georgia, in the offer made, was too broad and conclusive, and I think it was so. But while the record may not operate as an estoppel on the question of domicil, it does not follow that it should have been rejected as furnishing no evidence whatever. The great and controlling question under the issues was, where was the real and actual domicil of the deceased at the time of his death? That question was jurisdictional in its nature, and it was the fact involved in the issues upon which the rights of the parties depended. I think the record offered in evidence was admissible as evidence in chief under issues two and four, and as evidence in rebuttal of the evidence offered by the caveatee in support of issues one and three. Treating the question of domicil as in the nature of a jurisdictional question, it would seem to follow that the judicial proceedings in the Court of Ordinary in the State of Georgia would not preclude inquiry into the jurisdiction of that court, in which the proceedings took place, over the subject-matter, or the parties affected thereby, nor into the facts necessary to give such jurisdiction, namely,
The record, however, should have been admitted, in connection with the other facts, as reflecting upon the fact of domicil of the deceased at the time of his death. For if it be true, as declared by the judicial finding of the Georgia court, that the decedent was, at the time of his death, a resident of or domiciled in the State of Georgia, then he certainly died intestate as to all his personal property, wherever situate. It is conceded that the paper-writing propounded for probate in this jurisdiction, as a testamentary instrument, has no validity whatever by the law of the State of Georgia; and it is also conceded that before the instrument was admitted to probate here and annexed to letters of administration, all the personal property belonging to the estate of the deceased had been removed from this jurisdiction and taken to the State of Georgia by the administrator appointed there; so that there was no property whatever in this jurisdiction upon which the supposed testamentary paper and the letters of administration granted here could-operate. And upon the assumption that the domicil of the deceased at the time of his death was in Georgia, the claim-to and removal of such bonds, money, or securities, by the Georgia administrator, w'ere in all respects lawful and proper. Act of Congress, February 28, 1887 (24 Stat. 431); Wilkins v. Ellett, 9 Wall. 740; Wyman v. Halstead, 109 U. S. 654, 656; Parsons v. Lyman, 20 N. Y. 103. It is a principle well settled that where there are no debts due from the estate in-the jurisdiction where a foreign debtor of the estate resides,, and no ancilliary administration has been granted thei’e, the principal administrator may, in such foreign State, receive a voluntary payment from the debtor, which will be a good, discharge of the debt, even if an ancillary administrator should be afterwards appointed. Wilkins v. Ellett, 9 Wall. 740; Mackey v. Coxe, 18 How. 100, 104; Wyman v. Halstead, supra. Nor
In the case of Whicker v. Hume, 7 H. Lo. Cas. 124, the questions involved- in this case were very fully considered, both at the bar and by the court. In that case the testator had died in Paris, where he had lived for some time, and he made his will there, but he made it in English form, and it was admitted to probate in England. One, of the questions much considered was, at what place the testator really had his domicil at the time of his death—whether in France, in Scotland, or in England, as he had lived in all three countries. It was concluded upon the facts, that he was domiciled in England at the time of his death. And the general doctrine was laid down and maintained, that a will to be valid must be executed according to the law of the country where the testator was domiciled at the time of his death; and that while the grant of probate, not vacated on appeal, conclusively establishes that the will was so executed, yet it does not conclude on the question of domicil. In that case there were several opinions delivered, and the law lords all concurred in maintaining the general principle, that the maxim, mobilia sequuntur personam, is part of the jus gentium, and, therefore, that the post mortuary distribu
The Lord Chancellor (Chelmsford), after stating some of the general features of the case said: “I apprehend, that this will having been admitted to probate, it must be taken to be a valid will wherever it shall turn out that the testator was residing at the time of his death, but that the place of domicil is ■ still open for consideration, and also the validity of the bequest contained in the will, and the effect of it according to the*law of the domicil of the testator. The question, therefore, being open for consideration as to where the testator was domiciled at the time of his death, it' will be necessary to enter shortly into the consideration of the evidence upon that subject.”
Lord Cranworth, in his opinion, said: “The first question made is one that was extremely important, namely, the point, whether probate was or was not conclusive evidence of the domicil. Now, I have no hesitation in saying that the affirmative of that proposition can not be a correct exposition of the law. A probate is conclusive evidence that the instrument proved was testamentary according to the law of this country. But it proves nothing else. That may be illustrated in this way. Suppose there was a country in which the form of a will was exactly similar to that in this country, but in which no person could give away more than half his property. Such an instrument made in that country by a person there domiciled, when brought to probate here, would be admitted to probate as a matter of course. Probate would be conclusive that it was testamentary, but it would be conclusive of nothing more, for after that there would then arise the question, how is the court that is to administer the property to ascertain who is entitled to it? For that purpose you must look beyond the
And Lord Wensleydale, while giving his own definition as to what constitutes domicil of a testator, said: “I take it to be a perfectly clearly established proposition at this day, confirmed by the case of Stanley v. Bernes, 3 Hagg. Eccl. R. 373, that the succession must be regulated according to the law of that country where the deceased was domiciled at the time of his death, and that to make a valid will it must be executed according to the forms of the law of that country.”
As I have already stated, it is freely conceded by the appellee that the paper produced here for probate is wholly void and without effect by the law of the State of Georgia, because not attested by more than one witness. But if it be true, that the deceased was, at the time of his death, domiciled in this District, then the paper, though attested by one witness only, is a good and valid testamentary paper, and is therefore entitled to be admitted to probate here. The important question, therefore, to be determined on the trial of the issues framed on the caveat to the paper was the question of domicil of the deceased, at the time of his death— whether in the State of Georgia or in this District of Columbia. I am of opinion that the Georgia record of the grant of administration in that jurisdiction ought to have been admitted in evidence to the jury, in connection with the conceded facts that the deceased was a citizen of Georgia, that the paper in contest was executed in that State, and that the deceased died in that State soon after the paper was made.