56 N.H. 481 | N.H. | 1876
Lead Opinion
HILLSBOROUGH COUNTY. I think the question whether the domicile of the testatrix was in Manchester at the time of her death is material, and that it must be determined against the appellant before the copies can be permitted to be filed under the statute. No question is made but that the general rule is, as stated by counsel for the appellant, that the jurisdiction of the probate of wills is primarily exclusive in the probate court for the district in which the testator is domiciled at the time of his death.
Applying this rules if the testatrix was domiciled at Manchester at the time of her death, the probate of her will and primary administration of her estate belongs to the probate court of the county of Hillsborough.
The appellee has no ground therefore to stand upon, except that the legislature, in a certain class of cases, has precluded probate courts from inquiring into a fact, upon which their own jurisdiction depends, — that when copies of a will, and its probate in a foreign jurisdiction, are presented, no inquiry can be had whether the original probate, and hence the primary administration, ought not to be taken here. I must say it seems to me this would fall little short of a renunciation of the duty which the state owes its citizens to protect them in their rights of property, by seeing to it that the estate of persons deceased, whether real or personal, situated within our jurisdiction, be administered according to our laws. Nothing but language quite unequivocal and clear would warrant the conclusion that such was the intention of the legislature.
The act upon which the appellee relies has been in existence without material alteration since 1790; and for quite a portion of that time, to say the least, there has existed alongside it a statute declaratory of the general rule, already stated, that a will must be presented for probate in the county where the deceased had his domicile.
An examination of the act shows that it does not in terms, nor by implication, make the foreign probate of a will conclusive as to this question of domicile upon which the jurisdiction depends. The first act, that of 1790, carefully provided for notice, and that the copies might be filed if no sufficient objection were made against it. In this *486 particular the law certainly is not altered by the present act. Upon sufficient objection being made, the judge of probate must undoubtedly refuse to allow the copies to be filed. What is to be regarded by the judge of probate as a sufficient objection? It seems to me that if the domicile of the testator was within his county, that most clearly constitutes a sufficient objection; because, in that case, the will must be there presented for probate, and the primary administration be there had.
If that be so, the judge of probate cannot legally avoid the question of domicile when it is raised, and the appellant is entitled to have it determined by a jury, or in some other way, on this appeal.
Concurrence Opinion
By our statutes, cited by my brother LADD, and which, therefore, need not be cited again, the jurisdiction of the probate of wills is in the county where the testator was domiciled at the time of his death. It is also provided that a copy of a will, proved in a foreign jurisdiction, may, on notice to parties interested, and due hearing, if no sufficient objection appears, be filed in the office of the probate court, and that such ruling shall have the effect of a probate.
The court below having ordered the will under consideration to be so filed, an appeal is taken from that decree; and the question to be tried is, whether there is a sufficient objection to the decree.
The appellant alleges that the domicile of the testatrix, at the time of her decease, was in Hillsborough county, and that therefore, by our law, the jurisdiction of the probate of that will was in the probate court of Hillsborough county.
Now, if this be so, it is obvious that the will must be proved in Hillsborough county, in order to give it any validity in regard to the property of the testatrix situated in this state. Undoubtedly our law, permitting wills proved in foreign jurisdictions to be filed, intends wills proved by courts having jurisdiction over their probate. It is not claimed that the court before whom the will was proved in Canada has the jurisdiction, unless the testatrix was domiciled there at the time of her decease; so that this question of domicile is all-important in the case.
Now, I understand the position taken by the appellee to be, that the foreign probate court having assumed to try the facts upon which its jurisdiction depended, that fact must be taken to be conclusively settled, and cannot now be inquired into; and this brings us to the question, which I suppose is intended to be made in this case, viz., whether the foreign court, having, as appears by its record, determined the question of jurisdiction in its own favor, that question is conclusively settled against this appellant, and against the jurisdiction of this court.
In the case of People v. Dawell,
The case of Hoffman v. Hoffman,
These cases seem peculiarly apposite, because the proceedings in divorce are, like the probate of wills, in the nature of proceedings in rem. It appears to me, that whatever may be the law in regard to the effect of a determination of a court of the facts on which its jurisdiction depends in its own country, they show conclusively that foreign jurisdictions can no way be so bound.
I hold, therefore, that the appellant here is entitled to have the facts on which the jurisdiction depends tried by a jury.
Concurrence Opinion
The appellee, Edward D. L. Parker, presented his petition in the probate court for this county for leave to file in the probate office an authenticated copy of the will and codicil of Bridget Parker, the testatrix (who died in Canada), and of the probate of the same in that dominion. From the decree of the probate court granting this petition, Patrick Stark appealed; and the grounds of his appeal are, that the domicile of the testatrix, at the time of her decease, was in Manchester, and not in Canada, and, therefore. that the original will should be presented here for probate instead of in Canada.
The appellant claims that when the testator is a resident of this state, but dies beyond its limits during a temporary absence, his original will must be presented here for probate; that it cannot be probated in the state or country where he dies, and a copy of the will and of the probate thereof be brought here and filed, so as to have any effect.
In support of this position we are cited to the code of probate laws which have been in force in this state since February 3, 1789, without substantial change, as at present embodied in the General statutes of 1867. The general rule as to jurisdiction in the probate of wills, and everything pertaining to the settlement of estates, undoubtedly is as claimed by the appellant, — that it is primarily exclusive in the probate court for the district in which the testator had his domicile at the time of his decease. 2 Red. on Wills., ch. 1, sec. 2. I am not prepared to admit that our statutes are now, or that they ever have been, in conflict with a rule of such universal acceptance. On the contrary, it *488 seems clear that when the provisions are all considered together, their meaning is quite plain, — (1) that the will of every person deceased, whose domicile at the time of his decease was in this state, must be presented here for probate; and (2) that an authenticated copy of the will of a deceased person, proved in the country or state where he had his domicile at the time of his decease, according to the laws thereof, may, within copy of the probate thereof, be filed in the probate office in any county in this state, after a hearing and decree, where the deceased left property upon which the will might operate, and the will will thereupon operate upon the property so found in this state.
The appellee, however, contends that if, upon an issue submitted to a jury, they should find that the domicile of the testatrix at the time of her decease was in this state, the verdict could not produce any effective result. In the argument, his counsel inquired, — "Suppose, upon application to the court in Canada for the will, that court should coincide with the judge of probate from whose finding Mr. Stark has appealed: what is to be done?" As that question is not now before us, it need not be now decided. Very likely, however, the result might be, that, unless Mr. Parker should produce the will here, where by our statutes it must be presented for probate, if the jury should find the domicile of the testatrix was here, or if he has so conducted that he cannot produce it, then it could not be set up in this state, and the estate of the testatrix would be administered as though she had died intestate.
I think the demand of the appellant, that the question of domicile be tried by a jury, should be granted.
Appeal sustained.
An issue was accordingly framed, and sent to the circuit court for trial by a jury.
