Nos. 19,968—(119) | Minn. | Jan 19, 1917
Helen M. Griggs died in the state of New York leaving what purported to be her last will and testament, and leaving also a considerable property in this state in the hands of Frank A. Bovey, who was named as executor of the will- The will was duly presented to the probate court of Hennepin
The assignments of error present two principal questions, namely: (1) Whether the findings of the trial court are clearly against the evidence; and (2) whether the judgment of the Massachusetts court is binding upon the courts of this state.
At the time of the execution of the will, testatrix was over 80 years of age, yet there is no claim that she was mentally infirm, or that the will was procured from her by undue influence. She wrote the will herself, copying parts thereof from a preceding will, and therein she remembered by gifts a large number of near and distant relatives, including
Testatrix was born at Brookline, Massachusetts, on November 11, 1830, and there grew to womanhood; she never married, and died on November 6, 1913, at Dansville, in the state of New York. At the time of her death, and for many years prior thereto, she owned certain personal property in the custody and control of Frank' A. Bovey, in Hennepin county, this state, of the value of about $27,000. She had no property in the state of Massachusetts, except a few articles of furniture, and no real estate there or elsewhere. She had some personal belongings in New Jersey, and a small amount of-money in a bank in the state of New York. The property in Minnesota had been in the charge of Bovey for some years, and had been invested and reinvested by him for testatrix and as her representative. At the age of 33 or in 1863, testatrix left her home and took up the occupation of a nurse at Washington, D. C., where she remained for several years. ■ Her father died at the old home in Massachusetts in 1870, and testatrix never thereafter returned to that state to reside. After the father’s death, the mother went to live with a sister, and the homestead was sold and conveyed to third persons. Testatrix stored some of her household effects in the attic, but in later years they were removed therefrom and stored elsewhere. She was described in the deed conveying the homestead as Helen M. Griggs, of Brookline, Massachusetts, but she did not then in fact reside there or in any other place in Massachusetts. In fact after the death of her father and the consequent breaking up of the family home, she became a person without a home, a wanderer, a traveler in Europe and this country, with no fixed place of residence or abode. She was in comfortable circumstances, and took her enjoyment in life in the recreation of travel and visiting with friends and relatives in different parts of the country. Some of her most intimate and lifelong friends testify that they never knew of her haying a home in Massachusetts after the death of her father; that she spent most of her time abroad traveling; that she came back to this country from time to time and would go directly to Washington; that after her father’s death she always called Washington her home; that upon one occasion she
While it is true that great weight should be given to the recital in a deed or will as to the residence of the person executing such instrument, yet it is also true that such a recital is, by the great weight of authority, not regarded as conclusive on the question of domicile.
With respect to the evidence necessary to establish the intention to change the domicile, no positive rale can be adopted, but the intention may be gathered both from acts and declarations. Acts are generally regarded as more important than declarations, and written declarations are usually more reliable than oral ones. Dupuy v. Wurtz, 53 N. Y. 562.
We are of the opinion that the question oE domicile of the testatrix at the time of the execution of the, will under the evidence was one of fact
As to whether the judgment of the probate court in Massachusetts is binding upon the probate court in Minnesota, it appears: That the decree of the Massachusetts court was entered of record on the eleventh day of November, 1914, disallowing and refusing to admit the instrument to probate as the last will and testament of the deceased, upon the sole ground that the same was not properly executed. Tt does not appear that the question of domicile was considered or determined by that court, nor does it appear that the probate court under the laws of that state had any power to admit to probate a will executed in Massachusetts not according to the laws of that state, though it may have been according to the law of the domicile of testatrix.
The decree of the probate court in Minnesota admitting the will to probate was entered of record on the twenty-seventh day of January, 1914. The decree in the Massachusetts court is not res adjudicóla.
Order affirmed.