McEwen v. McEwen

197 N.W. 862, 50 N.D. 662, 1924 N.D. LEXIS 20

• Court: North Dakota Supreme Court
• Decided: March 1, 1924
• Status: Published

Opinion

Nuessle, J.

In November, 1908, Nary C. Hunter made a will hereinafter referred to as the North Dakota will, devising a quarter section of land in Walsh county, North Dakota to her nephew, Lome P. McEwen, the respondent herein. This devise was subject to a life, estate in favor of her husband, Alexander Hunter. Subsequently and in 1918 Mrs. Hunter with her husband went to Canada, where she died in October, 1919. The North Dakota will recited that Mrs. Hunter was a resident of Walsh county, North Dakota, and a resident of North Dakota was nominated as executor therein. Mrs. Hunter was able to and did affix her signature to this will. Mrs. Hunter died on October 14th, 1919.

On March 25th, 1920, Lome. P. McEwen began proceedings in the county court of Walsh comity for the probate of the North Dakota will under which he was the devisee. Tn his petition for probate, which was verified by him, he recited that Mary O. Iluntér died in Ontario, Canada, not being a resident of North Dakota at the time of her death, and further recited that her sole heir at law was her husband, Alexander Hunter, whose residence and postoffice address was Perth, Lanark county, Ontario. Service of notice of these proceedings in the Walsh county court was duly had and in due time the appellant, Daniel Mc-Ewen, appeared to resist the probate of the North Dakota will, and filed an answer and cross-petition with an authenticated copy of an alleged will of Mrs. Hunter made in Canada on October 10th, 1919, and tbe record of the probate thereof in Ganada attached, praying that the probate of the North Dakota will he denied and that the Canadian will be admitted to ancillary probate by t-lie court. In his answer and cross petition the appellant admitted the death of Mary C. Hunter, then'being a resident of Ontario, on October 14th, 1919; that she left real property in Walsh county, North Dakota, and that- her sole heir at the time of her decease was her husband, Alexander Hunter, whose address was Perth, Ontario, hut denied that the North Dakota will was her last will. He alleged that Alexander Hunter died in Canada on ..March 21, 1920 without issue; that he left a will whereby lie devised the Walsh county land and wherein he nominated the appellant, Daniel jM.cEwen, a resident of Lanark county, Ontario, as an executor; that the other executor nominated by Alexander Hunter was a resident of Walsh comity, North Dakota; that on the 10th day of October, 1919, Mrs. Hunter made, published and declared a last will and testament in conformity with the laws of her domicil, to wit Ontario, where she had continuously resided for a number of years prior thereto; that in such will she nominated her brother, Daniel McEwen, the appellant, and one Martin, both of Lanark comity, Ontario, as her executors; that thereafter and on the 20th day of March, 1920, such will was duly admitted to probate' by tlie surrogate court of the county of Lanark, province of Ontario, as shown by the authenticated copy of such will and the probate thereof attached to the cross-petition. To this cross-petition the respondent filed an answer and objection. Tie realleged the matters and things set out in his petition as to the North Dakota will; alleged that while Mary O. Hunter died in Canada that she was a citizen of North Dakota and was not domiciled in Ontario; denied that the Canadian will was the will of Mrs. Hunter, and that it was ever duly proved in Canada or elsewhere; admitted that Alexander Hunter was dead; denied that the probate of the will was effective to establish the will in North Dakota insofar as to affect real property in North Dakota, or to grant ancillary probate thereof in North Dakota. He alleged that at the time of the making of such will, Mrs. Hunter was not of sound mind or memory or competent to make a will; that such will was not freely and voluntarily made, and that it was procured by fraud, duress and undue influence, and that such will was not duly or sufficiently proved in the surrogate court of Lanark county, Ontario.

Thereafter a hearing was had on the issues as made by these pleadings. At such hearing the proponent of the North Dakota will adduced evidence tending to show that at the time such will was made Mary O. Hunter was seventy-five years of age; that she was then of sound mind; that she resided on the land devised in Walsh county; that she had been a resident there with her husband for many years; that she had perfected title to a government homestead in Walsh county; that such will was duly executed and published and given by Mrs. Hunter to her brother, Peter McEwen, the father of the respondent herein, for safe keeping; that Mrs. Hunter continued to reside in Walsh county for some ten years thereafter; that in the fall of 1918 when she was eighty-five years of age Mrs. Hunter and her husband, Alexander Hunter, went to Canada, the old McEwen home; that she was then infirm in mind and in body; that she went for temporary purposes; that when she departed for Canada, she left her household belongings in her home and stated that she wanted them when she returned; that the Hunters established no home in Canada; that Mrs. Hunter was too feeble to maintain a home there; that shortly before her death she was feeble-minded and was subject to hallucinations. The record as made by the respondent is wholly silent as to Alexander Hunter, ex-eepting only that it appears therefrom that he accompanied Mrs. Hunter to Canada. The respondent offered to prove that Mrs. Hunter was not at the time of the making of the Canadian will of sound mind or memory or competent to make a will; that said writing was not freely given or made or executed by her as her last will and testament; that the subscription and publication thereof were secured by fraud and undue influence; and that she was so impaired in mind and body that she was incapable of exercising her own will, and that she was induced against her will and judgment and contrary to her wishes to subscribe to said purported will. To this offer the appellant objected on the ground that the decree of the surrogate court of the county of Lanark, province of Ontario', admitting the will to probate as shown by the authenticated proceedings of that court offered in evidence, under the statute as to the probate of foreign wills, foreclosed any question as to the matters offered to he established. This objection was sustained by the court. On the other hand, the court received in evidence the answer and cross-petition of the appellant together with the authenticated copy of the proceedings of the Canadian court over the objection of the respondent that they were inadmissible on all the grounds set out in bis answer and objection to the cross-petition. The probate by the surrogate court of Ontario, as shown by the authenticated record, was in short or common form, i. e. upon proceedings to which the executors alone were parties. See 28 R. C. L. p. 367. The Canadian will complied with all the requirements of the laws of Ontario and the rules of the surrogate court as to form, signature and attestation.

It was further stipulated that the respondent, Lome P. McEwon, was a resident and citizen of the county of Walsh, North Dakota, and was not a party to the proceedings in the surrogate court of the county of Lanark, Ontario, or in any manner cited to appear therein, and had no knowledge of the pendency of said proceedings until after the order admitting the will to probate had been entered.

On the record as made, the court thereupon made findings, among others, a finding that Mary C. Hunter was at the time of the execution of the Canadian will and at the time of her death a resident of Lanark county, Ontario, Canada, and entered an order denying probate of the North Dakota will and admitting the Canadian will to ancillary probate. Thereafter the respondent perfected an appeal to the district court of Walsb county on questions of law alone. The district court, after a consideration of the record as thus certified to him by the county court, overruled and reversed the order of the county court admitting the Canadian will to probate, and ordered that the county court enter a new decree admitting the North Dakota will to probate, with leave, however, should the appellant so desire, to contest the same upon any of the statutory grounds, or to present the Canadian will for original probate in the county court of Walsh county. From this order the appellant, Daniel McEwcn, appealed to this court.

We have then this situation: Two wills of different date by the same testatrix devising the same North Dakota real property. The earlier will made in North Dakota in accordance with North Dakota larv by the testatrix when domiciled in North Dakota. The latter made in Canada in accordance with Canadian law and originally probated in Canada in short or common form. The earlier will propounded for original probate in North Dakota. AVhereupon the proponent of the later will resists such probate, presents the authenticated record of the Canadian will and probate thereof, and demands that it be admitted to ancillary probate in. North Dakota. The proponent of the North Dakota will, challenging the fact of Canadian domicil and resisting such ancillary probate, insists that the Canadian will, if admitted at all, be admitted for original probate in North Dakota to the end that -he may contest the validity thereof in North Dakota. Thus the sole question is as to whether the probate of the Canadian will in North Dakota if the same be admitted to probate therein shall be original or ancillary.

We think there can be no question but that, generally, a testator’s domicil at the time of death determines the jurisdiction for primary original probate of his will. That is, the proper court of his last domicil has exclusive original authority over the probate of the testator’s last will. See Schouler, Wills, § 1057; 11 R. C. L. p. 69 and cases cited at note 16; 5 R. C. L. p. 109; 28 R. C. L. p. 366; 23 C. J. p. 1010; 40 Cyc. p. 1245. Consistent with this rule our statute, § 8672, Comp. Laws, 1913, provides:

“Every will duly proved and allowed in any of the territories, or in any other of the United States or the District of Columbia, or in any foreign country or state, may be allowed and recorded in the county court of any comity'in which the testator shall have left any estate, or any estate for which claim is made. When a copy of the will and the probate thereof, duly authenticated, shall be produced by the executor, -or by any other person interested in the will, with a petition for letters, the same must be filed, and the court or judge must appoint a time for the hearing; notice whereof must be given as provided for an original petition for the probate of a will. If, on the hearing, it appears upon the face of the record that the will has been proved, allowed and admitted to probate in any of the territories, or any other of the states of the United States, the District of Columbia, or in aity foreign country or state, and that it was executed according to the law of the place in which the same was made, or in which the testator was at the time domiciled, or in conformity with the laws of this state, it must be admitted to probate, be certified in like manner according to the facts, and recorded, and have the same force and effect as a will first admitted to probate in this state, and letters testamentary or of administration with the will annexed issued thereon.”

This section, in whole» or in part, .is embodied in the statutes of nearly all of the states, see 28 R. C. L. p. 366, note 14. It comprises §§ 1, 2 and 3 of the proposed Uniform Probate of Foreign Wills Act. In construing this statute, in connection with other statutory provisions relating to foreign and domestic wills, the courts have held without dissent that its provisions apply only in the case of foreign .wills and do not apply where the testator’s domicil at the time of death was within the state. See 40 Cyc. p. 1239; Re Clark, 148 Cal. 108, 82 Pac. 760, 7 Ann. Cas. 306, 1 L.R.A.(N.S.) 996, 113 Am. St. Rep. 197 and notes. We believe such is the proper construction and should be adopted in this state. As is said in Ee Clark, supra:

“But, nevertheless and always, when a foreign will is so offered (under § 8672, N. D. Comp. Laws, 1913, supra) for probate in this state, two questions are open as new and original questions for the determination of our own probate court: First, the sufficiency of the proofs of foreign probate; and, second, the question of the residence of the deceased. For if, upon the question of residence, it shall be determined that the deceased was in truth a resident of this state, it follows of necessity that the proper state court has exclusive, original primary jurisdiction to admit the will to probate, and will not admit if- as a foreign will for ancillary proceedings. It does not, of course, follow that because the probate court under such circumstances will not admit it as a foreign will that it will refuse it probate altogether. It will grant it probate, the facts warranting, in proceedings under § 1294 (§ 8526, N. D. Comp. Laws, 1913) for original probate.”

And while in the paragraph above quoted the court used the term “residence,” it was used in the broader sense of legal residence or domicil.

In the instant case the Canadian will of Mary O. Hunter was admitted to probate in Ontario prior to the initiation of any proceeding for probate elsewhere. It therefore follows, if Mrs. Hunter was at the time of her death domiciled in Ontario and the will was duly proved and allowed in prohate there, that it must be admitted to ancillary probate in Walsli county; but on the other hand, if she was at the time of her death domiciled in Walsh county, then the statute does not apply and the Canadian will, if admitted to probate, must be admitted to original probate therein.

In the instant ease the county court passed upon the issue of domicil raised on the pleadings, and in effect held that the domicil of the testatrix was in Ontario. There was no express finding as to domicil. The finding was that her residence was in Ontario. In this connection it must be remembered that the appeal to the district court was on questions of law alone. It is conceded on both sides that the appeal, being thus limited, the determination of the comity court on the question of domicil can be disturbed only if the same is clearly contrary to the preponderance of the evidence in the record touching the matter.

The record is very short. The substance of the testimony introduced has been heretofore stated. No testimony was offered on the part of the appellant other than his petition and the authenticated record of the Canadian court. These were objected to by the respondent on all the grounds raised in his answer and objection -to the cross-petition. It is the contention of the appellant that the record of the Canadian court is properly authenticated; that prima facie it establishes the jurisdiction of the Canadian court. We think that this contention is correct, and jurisdiction is presumed unless attacked. Holyoke v. Holyoke, 110 Me. 469, 81 Atl. 40. But jurisdiction is dependent upon proof of domicil. And the question of domicil being challenged, tbe moment that any evidence to the contrary is introduced, the prima facie effect of the authenticated record is overcome. Proof of domicil of origin elsewhere does this. Ibid. The proceeding in Canada was in rom. No judgment in personam was rendered. The authenticated record has no probative force to establish domicil. See Overby v. Gordon, 177 U. S. 214, 44 L. ed. 741, 20 Sup. Ct. Rep. 603; Re Horton, 217 N. Y. 363, 111 N. E. 1066, Ann. Cas. 1918A, 611. Neither is there any competent evidence in the record as to the making of the Canadian will or otherwise in support of the appellant’s position. Such position is not established .unless by the admissions of the respondent.

The respondent in his petition, in the first instance, recited that Mary C. Hunter died in Canada, not being a resident of the state of North Dakota, and that the, residence and postoffice address of Alexander Hunter, her sole heir, was Perth, Ontario, Dominion of Canada. In view of the respondent’s answer and contention throughout the proceeding, wo believe that this statement in the original petition cannot be considered as an admission as to the residence of the testatrix, and is entitled to no weight in determining the matter of her domicil. It appears from the evidence that the testatrix had taken and perfected title tó a government homestead in Walsh county many years ago; that she and her husband had a home and resided in Walsh county where they lived for many years and up to the time they left for Canada in the fall of 1918; that testatrix departed thence for a visit, accompanied by her husband; that the testatrix left her home aaid household articles 'therein, expressing an intention to return; that she remained away lentil her death something over a year later; that she never established a home in Canada; that she was weak in body and unable to establish and maintain a home; that shortly before her death she was feeble in mind and subject to hallucinations. It does not appear by admission of the respondent, excepting inferentially, as to where Alexander Hunter, the husband of the testatrix, died. Put the inference is that ha died in Canada. Nowhere does it appear as to what his intention ivas as to the matter of domicil. So far as the record shows, the domicil of origin of both the testatrix and Alexander Hunter was North Dakota, and this being established, it is presumed to have continued there until the contrary is affirmatively shown. Comp. Laws 1913, ¶ 42, § 7936; Pickering v. Winch, 48 Or. 500, 87 Pac: 763, 9 L.R.A.(N.S.) 1159 and cases cited; Gardner v. Board of Education, 5 Dak. 259, 38 N. W. 433; Holyoke v. Holyoke, 110 Me. 469, 87 Atl. 40; Miller v. Miller, 34 Ohio C. C. 43; 19 C. J. 431 and note. And the burden of proof is on Mm wbo asserts the change. Gardner v. Board of Education, 5 Dak. 259, 38 N. W. 433; Miller v. Miller, 34 Ohio C. C. 43; Holyoke v. Holyoke, 110 Mc. 469, 87 Atl. 40; Pickering v. Winch, 48 Or. 500, 87 Pac. 763, 9 L.R.A.(N.S.) 1159 and cases cited.

Appellant asserts that Alexander Hunter’s domicil was in Ontario at the time of Mrs. Hunter’s death; that this presumptively follows from the fact that his residence was there at that time, and that since husband and wife may not have separate domicils, it also follows that Mrs. Hunter’s domicil was in Ontario. But the appellant is the party asserting the change from North Dakota to Ganada. The burden is on him, yet he offers no proof but relies on inference and presumption alone. Has be met the requirement and sustained the burden ? There is no evidence in the record touching the matter of the residence or domicil of Alexander Hunter, excepting the testimony of the witnesses called on behalf of the respondent and which tends to establish his domicil in North Dakota at the time of his departure for Canada in 1918. If it be found that the residence of Alexander Hunter was in Canada at the time of Mrs. Hunter’s demise, such finding must be based upon the recital of such residence in respondent’s original petition, the allegation of his residence in the appellant’s cross-petition, the admission of his death in the respondent’s answer and respondent’s failure therein to expressly deny the allegation of residence in the cross-petition. Though these, taken and considered together, be held sufficient to sustain the contention as to Alexander Hunter’s residence in Canada, yet we do not think thorn sufficient to warrant the inference; that it was his intention to abandon his domicil in North Dakota. Very satisfactory evidence is required to prove an intention to abandon or change an established domicil, especially where the change is to a foreign land. Wharton’s Priv. International Law, § 55; Whicker v. Hume, 7 H. L. Cas. 124 at p. 159, 11 Eng. Reprint, 50, 64, 9 Eng. Rul. Cas. 689. While domicil and residence are frequently used synonymously (See 9 R. C. L. p. 540; 19 C. J. 395), yet there is a clear distinction in law between them and they are not when used accurately, convertible terms. Gardner v. Board of Education, supra; Pickering v. Winch, supra; 19 C. J. 395 and notes. To effect a change of domicil there must be actual residence in the new place and an accompanying intent to make it the real, true, fixed home. Gardner v. Board of Education, and Pickering v. Winch, supra; Holyoke v. Holyoke, 110 Mc. 469, 87 Atl. 40; Miller v. Miller, 34 Ohio C. C. 43; Price v. Price. 156 Pa. 617, 27 Atl. 291; Merrill v. Morrissett, 76 Ala. 433.

Appellant urges that the circumstances that in the Canadian will Airs. Hunter was described as a resident of Canada, and that the executors nominated therein were residents of Canada are to be considered in determining tbe question of domicil. The original will is not in evidence. Neither is there any proof thereof in the record other than the authenticated copy of the surrogate court of Ontario. From this it appears that the will was signed by mark. True, the rule is that recitals in a will axe relevant and may be of probative value in establishing the domicil of the testator. Likewise, the place of domicil of the executors designated. Holyoke v. Holyoke, 110 Me. 469, 87 Atl. 40; Miller v. Miller, 34 Ohio C. C. 43; Merrill v. Morrissett, supra. But the weight and value of such recitals and designations should, and we believe do, depend upon the circumstances. Here a very old woman, eighty-six years of age, by reason of infirmity signs a purported will by mark. She is subject to hallucinations and feeble of mind. Certainly sbe did not write the will. Neither can we infer that she dictated its provisions. The recitals as to residence are largely matters of form. The expressions of the scrivener rather than of the testatrix. We think that they are to be given no weight, under the circumstances shown, in determining her domicil.

Wc are of the opinion that on the whole record as made, it clearly appears that Airs. Hunter at the time of her death was domiciled in the state of North Dakota, and that as a matter of law, the inferential finding of the county court to the contrary is not sustainable. The question of domicil being thus determined, tbe appeal must fail. It is not necessary to consider any further questions that have been raised.

The order and judgment of the district court will be affirmed.

Bronson, Oh. J., and Christianson, Johnson, and Birdzkll, JJ,, ■«concur.