Shannon v. Shannon

111 Mass. 331 | Mass. | 1873

Wells, J.

For the decision of these appeals we do not find it necessary to determine the long vexed question of the validity of the decree of divorce obtained in Indiana in 1856, by Oliver N. Shannon from his wife, Harriet M. Shannon.

Upon the evidence submitted to us, two facts are established, which effectually dispose of both appeals. First, that Oliver N. Shannon had acquired a domicil in Indiana before November 1868, when he made his will there ; and that he had not abandoned it when he died. Second, that he died testate.

There being a will, whether properly admitted to probate or not, no one could be appointed administrator, as of an intestate estate. The petition of Harriet M. Shannon to be so appointed was rightly dismissed, therefore, even if she is the lawful widow, as she alleges.

The courts of Indiana had jurisdiction for the original and conclusive probate of the will. The record is shown by the evidence to be in the usual form of recording the proceedings for the probate of wills in that state. The fact that such proceedings were had is proved by direct testimony of witnesses present; as is also the existence and genuineness of the original will, if it were necessary or competent, by such proof, to supplement the proof by the record itself. We do not discover any irregularity or insufficiency in the form of execution of the will, or in the proceedings for its probate, either here or in Indiana, which ought to prevent its allowance by the court here, under the Gen. Sts. e. 92, §22.

The appellant objects to the issue of letters testamentary to Mary G. Shannon, one of the persons named in the will as executors : first, because she had once declined to accept the trust; and, secondly, because the application, upon which alone notice had been given, and upon which the proceedings were founded, prayed for the appointment of Mr. Welch as administrator with the will annexed. Neither of these objections appears to us to have force. Such declination would authorize the court to proceed to the appointment of an administrator. But if, before action by the court, the declination be withdrawn or waived, the court may regard it as not made, and proceed accordingly. The testamentary appointment remains unaffected. The fact of declination, set forth in the application, is not established; and the court proceeds to give effect to the testamentary appointment. Gen. Sts. c. 92, § 23. No further notice is necessary for that purpose. Decrees affirmed.