38 Miss. 646 | Miss. | 1860
delivered the opinion of the court.
Appellants filed their petition in the Court of Probates for Wilkinson county, to set aside the probate of the will of John W. Brown, and to revoke the letters testamentary granted to John H. Sims, as the executor named in his will, on the ground that, the Court of Probates of Wilkinson county had no jurisdiction to take probate of the will or to grant said letters.
The petition states, that John W. Brown, a resident citizen of Louisiana, died in the month of March, 1857, leaving petitioner Elizabeth, his only surviving parent, and petitioner Thomas W., his only surviving brother; that at the time of his death, and for some time previous thereto, the said decedent was domiciled in the State of Louisiana, where he had all his estate, except two or three ne-groes, which were left temporarily with his mother, in said county of Wilkinson; that about the 14th day of January, 1857, the said decedent, in the city of New OrleanSj State of Louisiana, made his will, disposing of his estate; and that shortly afterwards he died, never having been married, and leaving his said mother and brother, “his only next of kinthat all the property and effects of the said decedent were illegally removed from the State of Louisiana to the county of Wilkinson, in the State of Mississippi, after his death, except the two or three negroes before referred to.
The petitioners then state that the will was probated, letters testamentary granted, appraisement made and returned; all of which are made exhibits to the petition.
The petitioners state that, according to the laws of Louisiana, the said Elizabeth is entitled to one-third part of the whole estate of the decedent, “as the forced heir" and only surviving parent of decedent, no just cause for disinheriting her appearing in said will.
The petitioners pray that the probate of the will be set aside, and letters testamentary be revoked, and for such other and further order and decree as may seem proper, and for general relief.
To this petition the answers of the several parties made defendants were filed, also an amended petition and answer thereto; all
On the first point, we are satisfied that'his domicile was in Wilkinson county. In his will, made after he went to New Orleans, on his way to Texas, he describes himself as of Wilkinson county, Mississippi. He appointed his executor there, directed his estate, in the hands of Lee, in New Orleans, to be sent with his will to his executor in that county, at his death, and repeatedly declared that' to be the place of his residence. His mother lived there, he had spent all his life there, and never left there even temporarily to reside elsewhere, until his declining" health rendered it necessary that he should give up his business and travel for the improvement of his condition.
It is true, one witness heard him say that Bayou Sara was his home; but there is no satisfactory evidence that he ever acquired, or intended to acquire, another domicile, or permanent residence, after he left Wilkinson county.
On the contrary, the whole scope of the evidence shows that his health induced him to abandon his business and his home in Wilkinson county, not with a view to a permanent abode anywhere else, but only to regain his health or prolong his life by travel. The case of Hairston v. Hairston, 27 Miss. R. 716, fully settles this point.
On the second point, even if the decedent had been domiciled in Louisiana at the time of his death, and the rights- of petitioners were-such in Louisiana as they allege them to be, still, under the facts in this ease, the property, or a portion of it, being in this State at the time of the grant of letters testamentary and the probate of said will, the courts of Mississippi were bound to take jurisdiction of it. No other court could have reached it. This necessarily results from the independent character of our separate State governments. Their laws do not operate extra territorial!y. Their courts and their officers have no power in Mississippi. They must
The courts of Mississippi, therefore, take jurisdiction of the estates of decedents found in her limits, for the benefit of the true owners, and by comity they will in certain cases execute the laws of the domicile of the decedent, in case of personal estate, instead of their own law, so far as the descent and distribution of the estate is concerned.
In Wells v. Wells, 35 Miss. R. 667, it is said, by this court, that “ each State has the right to regulate and govern all the property ■within its limits, without regard to the residence of the owner. It has the right to prohibit and exclude the operation of the lex domi-cilii, if it choose to do so; but when no such prohibitory laws exist, either in express terms or of most manifest intent, the law of the domicile governs both as to transfers inter vivos and testamentary dispositions.” Garland, Exr. v. Rowan, 2 S. & M. 634, and cases cited.
This rule is one of comity, to be*enforced or not, according to the will of each sovereign; because all property within its limits must be bound by the laws of such sovereignty. Mahorner v. Hooe, 9 S. & M. 274.
On the whole case, we think the decree of the court below was correct, and should be therefore affirmed.
