Scripps v. Wayne Probate Judge, 131 Mich. 265

Scripps v. Wayne Probate Judge

131 Mich. 265 | Mich. | 1902

Grant, J.

(after stating the facts). It is, of course,

the duty of those having a last will and testament in charge to promptly present it for probate upon the death of the testator. If they for any reason refuse or fail to do this, it is then the duty of those who are interested in having the will probated to take the proper steps for that purpose. The authorities, so far as we have been able to examine them, ^ without exception, hold that the probate court of the domicile of the testator has exclusive jurisdiction to determine .the validity of the will. If such will had been admitted to probate by a court having no jurisdiction, the decree or order of that court is not binding upon the court of the deceased’s actual domicile. It may be binding as to property located within the jurisdiction of that court, but is not conclusive upon the courts of other jurisdictions, under the rule of State comity, or under the United States Constitution. If those interested, for any reason, fail to present a will for probate at the proper court of the domicile of the testator, any party interested in the estate as heir or creditor may present a petition for the appointment of an administrator, and it is no'defense to this action to say that the deceased made a will which is beyond the jurisdiction of the court of the domicile.

Under the statutes of Ohio, there can be no contest in the probate court over the probate of a will. Only the witnesses to the will, and such other witnesses as any per*269son interested in having the same probated, can be called. Its validity in that State cannot be contested until it has been admitted to probate, and then by a proper suit for that purpose instituted in the court of common pleas. In re Hathaway's Will, 4 Ohio St. 383. Under the statutes of Michigan, the only place where the due execution of a will can be contested is in the probate court at the testator’s domicile (3 Comp. Laws, § 9282), where all parties interested are entitled to notice, while in Ohio no notice is required to be given to any one. It was therefore held in that State that where the probate of a will was refused, and the parties had no notice of its refusal until too late to effect an appeal to the court of common pleas, they were entitled to repropound the will, notwithstanding the former order of refusal had not been vacated. Feuchter v. Keyl, 48 Ohio St. 357 (27 N. E. 860). It is also held in that State, after a careful review of the authorities, that the jurisdiction of a court in which a judgment was rendered may be inquired into, and, if it be shown that the facts essential to jurisdiction did not exist, the record is a nullity, notwithstanding the recitals therein. Pennywit v. Foote, 27 Ohio St. 600, 618 (22 Am. Rep. 340). A Mrge number of authorities are there cited in support of the proposition. The supreme court of that State has-also passed upon the question, in Manuel v. Manuel, 13 Ohio St. 458, in which the court holds that “the practice of first proving our wills in other States has never yet obtained.” In that case the testator, whose domicile was in Ohio, made an olographic will in New Orleans, while on a visit there. The will was admitted to probate in New Orleans, and an authenticated copy brought to Ohio and admitted to record. A bill was filed to set aside the will as invalid under the laws of that State. It was held that a copy of the will was improperly admitted to record in that State, and, “by the settled rule of international law, the jurisdiction to determine the validity or invalidity of the will belongs to the courts of this State [Ohio].” So it is held in Mississippi that the capacity to make a will *270must be determined alone by the laws of that State, the place of the domicile of the testator. Bate v. Incisa, 59 Miss. 513; Sturdivant v. Neill, 27 Miss. 157. So in New Hampshire it is held that an authenticated copy of a will and the .probate thereof in a foreign country cannot be filed in a court of that State, where the domicile of the testator was in that State at the time of his death. Stark v. Parker, 56 N. H. 481. See, also, Succession of Gaines, 45 La. Ann. 1237 (14 South. 233).

This rule is also established by the Supreme Court of the United States. Where a transcript of the proceedings of the court of ordinary in a county in Georgia was offered for the purpose of showing that the decedent had died a resident of- Georgia, intestate, and that the petitioner in a court for the District of Columbia was estopped to deny the fact, it was held that the grant of letters had no binding or probative force in contests respecting property lying outside the territorial dominion of the State of Georgia. Overby v. Gordon, 177 U. S. 214 (20 Sup. Ct. 603). The question is there thoroughly discussed, and many authorities cited. See, also, Drexel v. Berney, 122 U. S. 250 (7 Sup. Ct. 1200).

Where a divorce was obtained in the State of Indiana, where the husband and wife lived in Michigan, it was held that, while ‘ ‘the parties had their residence within this State, the courts of Indiana had no authority to consider the question of divorcing them.” The respondent was charged with bigamy, and his decree of divorce in Indiana was held no defense. People v. Dawell, 25 Mich. 247 (12 Am. Rep. 260).

The learned counsel for the respondent cite and rely, among other cases, upon Shannon v. Shannon, 111 Mass. 331. The deceased, Mr. Shannon, formerly lived in Massachusetts, removed to Indiana in 1855, made a will in 1868, and died in 1869. After removing to Indiana he obtained a divorce from his wife, who resided in Massachusetts. She filed a petition for administration, claiming that his domicile was in Massachusetts, and that he died intestate. *271The court did not dismiss the proceeding upon the ground that it would have had no jurisdiction if the domicile of the deceased had been at the time of his death in Massachusetts. It found as a fact that Mr. Shannon had acquired a domicile in Indiana before he made his will, and had not abandoned it when he died. For these reasons the court held that the court of Indiana had jurisdiction for the original and conclusive probate of the will. See, also, the language in Bradley v. Broughton, 34 Ala. 706, 707 (73 Am. Dec. 474).

It appears from the allegations in relator’s petition that -one of the executors filed a petition in the probate court for the county of Wayne for the probate of the will, but subsequently withdrew it, and now insists upon the proceeding in Ohio. The relator might, perhaps, have in his petition for administration said nothing about a will, though it is difficult to see how he could do so without placing the facts before the court, and alleging that the pretended will was void. He knew of the existence of the pretended will. It certainly is not in the power of executors, by suppressing a will, or by refusing to probate it at the place of the testator’s domicile, to prevent those interested to defeat the will from having a hearing in the only court which has jurisdiction in the matter. It was' the duty of the probate court to proceed with the case, and determine whether the domicile of the deceased was in.Detroit. If the court shall find that his domicile was in Detroit, then it shall be its duty to proceed and determine whether the deceased died intestate. If the court finds that he died intestate, letters of administration must issue.

Judgment reversed, and case remanded for further proceedings, with costs to relator.

Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.