аfter making the above statement of the case, delivered the opinion of the court.
The contention is that the issuing of letters of administra-* tion to Mrs. Thormann by thе civil district court of the parish of Orleans was an adjudication that Fabacher jvas domiciled in that parish at the time of. his death; that Mrs. Thormann was sole surviving heir; that he died intestate; that this adjudication was in all these respects conclusive against the world; and that the Wisconsin courts in admitting the will to probate did not give tо the Louisiana proceedings that full faith and credit to which they were entitled under the Constitution and laws of the United States, and, therefore, denied a right securеd thereby.
But it is objected that no such right, was specially set up or claimed in the county and circuit courts, and this would appear to have been so. The Louisiana record was not pleaded, and seems to have been offered and admitted in evidence as tending to throw light on the -question of domicil, and not as concluding it. Mrs. Thormann contested that question on the merits, and also denied, the validity of the will in respect of its execution, and becahse of undue influencе. As the Supreme Court was reviewing the decision below for errors committed there, it would ordinarily follow that error could not be predicated on the deрrivation of a right which had not been asserted, and perhaps might properly be held to have been waived.
However, while we think that on this record there wаs color for the motion to dismiss, we shall decline to sustain that motion inasmuch as the Supreme Court in its opinion considered the particular question here presented, but will dispose of the case on the motion^o affirm as the ruling of that court, so far as open to our examination, is so obviously correct, under the circumstances, that further argument is unnecessary.
The question before us is whether the Supreme Court deprived Mrs. Thormann of a right secured to her by the Constitution and laws of the United States in holding that her appointment' as administratrix of the succession of' Joseph
Fabacher’s property in Wisconsin consisted of movables and immovables. His will was executed in that State in accordance with its laws, and was open to no objection for want of testamentary capacity. But Mrs. Thormann resisted the probate on the ground that the will was invalid by the law of Louisiana, and that that law must be applied in Wisconsin, because Louisiana was, and Wisconsin was not, the domicil of the deceased. We need not go into the rules and their exceptions governing such cases, for the issue as to Fabacher’s domicil, raised by Mrs. Thormann in the Wisconsin proceedings to which she made herself a . party, was regularly tried at large and determined against her. Nevertheless she cоntended in the state Supreme Court that the judgment below was erroneous as matter of law, because the question of domicil had been absolutely conсluded by her appointment in Louisiana.
Yet the proceeding in Louisiana, instituted, it may be- remarked, after the will was presented for probate in Wisconsin, amounted to no more than an
ex parte
application for letters of administration and a grant thereof.- Doubtless the desti
The technical distinction between an original and an ancillary administration is unimportant here.
Whatever the effect of the appointment, it must be as a judgment and operate by way of estoppel. Now a judgment in rem binds only the property within the control of the court which rendered it; and a judgment in personam binds only the parties to that judgment and those in privity with them.. This appointment cannot be treated as a judgment in personam,, and as a judgment in rem it merеly determined the right to administer the property within the jurisdiction, whether considered as directly operating on the particular things seized, or the. general status оf assets there situated.
In this country the general rule is, “that administration may be granted in any State or Territory where unadministered personal property of a dеceased person is found, or real property subject to the claim of any creditor of the deceased.” 1 Woerner on Administration, (2d ed.) § 204
As to sucсessions, the law of Louisiana provides as follows (Code of Practice, 1899):
“ Art. 929. The place of the opening of successions is fixed as follows:
“ In the pаrish where the deceased resided, if he had a domicil or fixed place of residence in this State.
“ In the parish where the deceased owned immovаble property, if he had neither domicil or residence in this State, or in the parish in which it appears by the inventory, his principal effects are, . . . if he havе effects in different parishes.
“ In the parish in which the deceased has died, if he had no fixed residence, nor any immovable effects within this State, at the time of his death.”
The order of appointment by the Louisiana court did not •make, nor did the letters themselves recite, any finding as to Fabacher’s last domicil, and as he died in the parish of
In De Mora v. Concha, 29 Ch, Div. 268, it. was held that the decree of a probate court was not conclusive in rem as to domicil, although the fact was found.therein, because it did not appear that the decree was necessarily based on that .finding; and it was doubted whether the findings on.which- judgments in rem are based are in ail cases сonclusive against the world. The decision was affirmed in the House of Lords. 11 App. Cas. 541. The casé is a leading and instructive one, was ably argued, and has been repeatedly followed since the judgment was pronounced.
In
Brigham
v. Fayerweather,
Again, it is thoroughly settled that the constitutional provision that full faith and credit shall be given in each State to the judicial proceedings of other Statés; does not preclude inquiry into the jurisdiction of the court in which the judgment is rendered, over the subject-matter, or the parties affected’ by it, or into the facts necessary to give such jurisdiction.
Thompson
v.
Whitman,
The point before us is a narrow one, but in any aspect in which it may be considered we are unable to assent to the view that the Supreme Court of Wisconsin was bound to treat the proceeding in Louisiana as conclusively determining the question of domicil; and unless it was so bound its decision deprived plaintiff in error of no right secured to her by the Constitution and laws of the United States.'
Judgment affirmed.