Parnell v. Thompson

105 P. 502, 81 Kan. 119, 1909 Kan. LEXIS 315

• Court: Supreme Court of Kansas
• Decided: November 6, 1909
• Docket: No. 16,113
• Status: Published

Opinion

The opinion of the court was delivered by

Porter, J.:

The making of two wills by a testator, one disposing of his property at his domicile and the other, of his property situated in a foreign country, although unusual, has undoubtedly the sanction of law, and there would seem to be no inherent objection to the validity of either, where each is separate and distinct and otherwise in conformity with law. (1 Underhill, Law of Wills, § 284.) The validity of such wills has been recognized in England. (In the Goods of Astor (1876) L. R., 1 Prob. Div. 150; In the Goods of Murray (1896) L. R., Prob. Div. 65.)

The important question to be determined is whether the probate court had jurisdiction to admit to probate the original will of Herbert Marriage, the will not having been first probated in the courts of his domicile. The granting of letters testamentary or of administration by the probate court is the exercise of judicial authority. If regular in form, the letters are prima facie evidence of the regularity of prior proceedings, but are absolutely void if the court making the appointment had no jurisdiction. (Perry, Adm’r, v. St. J. & W. Rld. Co., 29 Kan. 420; Estate of Mallory v. B. & M. R. Rld. Co., 53 Kan. 557; Railway Co. v. Bennett, 58 Kan. 499; Ewing v. Mallison, 65 Kan. 484.)

After the case was tried, and before judgment, the plaintiff by leave amended his reply and averred that under the laws and practice in England a subject or resident citizen thereof is authorized to dispose of his property in any other jurisdiction or country by a will separate and distinct from his will disposing of his property in England; that under the laws of England, when separate wills of this character are made, each reciting that it is to be executed and administered independent of the other, the courts of England hold that the only courts having jurisdiction to probate such wills are the courts of the country in which the property disposed of is located, and that in such cases the courts of England have refused probate of the will disposing of property in a foreign jurisdiction; and, further, that, where a citizen of the United States has made two wills, separate and distinct from each other, one disposing of his property in the United States and the other disposing of his property in England, the courts of England, in recognition of the comity existing between nations, have permitted the independent will covering property in England to be probated there. It is said in the brief that all these allegations were established to the satisfaction of the court, and that the court made findings of fact thereon, but the court merely found that the American will was never proved or admitted in the courts of England, and no finding was made in reference to what the laws of England are in respect to the matters referred to in the reply. Our attention has, not been called to any evidence offered for the purpose of proving the averments. We are referred to numerous decisions of the English courts, which we are at liberty to consider as precedents, but not in proof of the fact as to what the laws of England are. We take judicial notice of .the laws of another state or of a foreign country for the purpose of aiding us in ascertaining and determining the laws of this state on a particular subject, but can not do so for any other purpose. (Railway Co. v. Hutchings, 78 Kan. 758.) Looking to the provision of our own laws, we find' that section 8 of article 3 of the constitution provides:

“There shall be a probate court in each county, which shall be a court of record, and have such probate jurisdiction and care of estates of deceased persons, minors, and persons of unsound minds, as may be prescribed by law.”

Section 1974 of the General Statutes of 1901, so far as applicable to the present case, reads:

“The probate courts shall be courts of record, and, within their respective counties, shall have original jurisdiction: First, to take the proof of last wills and testaments, and admit them to probate, and to admit to record authenticated copies of last wills and testaments executed, proved and admitted to probate in the courts of any other state, territory or country; . . . seventh, to have and exercise the jurisdiction and authority provided by law respecting executors and administrators, and the settlement of the estates of deceased persons.”

Section 2806 of the General Statutes of 1901, respecting executors and administrators, reads:

“That upon the decease of any inhabitant of this state, letters testamentary or letters of administration on his estate shall be granted by .the probate court of the county in which the deceased was an inhabitant or resident at the time of his death; and when any person shall die intestate in any other state or country, leaving any estate to be administered within this state, administration thereof shall be granted by the probate court of any county in which there is any estate to be administered; and the administration which shall be first lawfully granted in the last-mentioned case shall extend to all the estate of the deceased within this state, and shall exclude the jurisdiction of the probate court in every other county.”

Construing the first part of the section just quoted, it has been held that where the deceased, is a resident of this state the probate court of a county has no jurisdiction over the estate unless the deceased, at the time of his death, was an inhabitant or resident of that county, and that the true place of residence of the deceased at the time of his death may be shown for the purpose of disproving jurisdiction, where the probate court has assumed jurisdiction to administer the estate. (Ewing v. Mallison, 65 Kan. 484.)

In sections 7937 et seq. of the General Statutes of 1901, relating to wills, are found the provisions concerning foreign wills. Section 7961 provides that authenticated copies of wills executed and proved according to the laws of any state or territory of the United States relating to property in this state may be admitted to record in the probate court of any county in this state where such property may be situated, and the authenticated copies so recorded shall have the same validity as wills made in this state. Section 7962 reads:

“A will executed, proved and allowed in any state or country other than the United States and territories thereof, according to the laws of such foreign state or country, may be allowed and admitted to record in this state in the manner and for the purpose mentioned in the following sections.”

Section 7963 provides that “a copy of the will and probate thereof, duly authenticated, shall be produced by the executor or by any person interested therein, to the probate court of the county in which there is any estate upon which the will may operate.” Section 7964 provides that after the instrument is allowed and recorded the will, the probate and the record thereof shall then have the same force and effect as if the will had been originally proved and allowed in the same court in the usual manner. Section 7965 provides for granting letters testamentary or of administration after allowing and admitting to record a will pursuant to the four preceding sections.

The appellants insist that it was the intention of .the legislature in the adoption of the sections we-have cited to make it mandatory on the heirs and devisees of a testator under a foreign will to probate the will first at the domicile of the testator, and it is urged as reasons which probably actuated the legislature in so providing that it is easier to secure witnesses acquainted with the deceased and his handwriting at the place of his domicile; that if original foreign wills were perr mitted by law to be probated in any county in this state where the testator left property, persons interested in the estate would be put to great expense in taking foreign depositions for the purpose of proving the will, and many opportunities would be afforded for fraud. The principal argument is that the method specifically provided by statute for admitting to record autheiiticated copies of a foreign will proved in the foreign jurisdiction is exclusive, and amounts to a limitation on the jurisdiction of probate courts. Some slight support for the appellants’ contention is found in language used in the) opinion in Meyers v. Smith, 50 Kan. 1. In that case the instrument called' a will, which it was claimed was executed by Isaac Johnnycake, was presented to the probate court of Wyandotte county, and that court ordered the will approved. The original instrument; however, was not produced, and the alleged probate was founded merely upon a certified transcript of a will executed in the Indian Territory and recorded in the office of the clerk of the United States district court of the territory, probably for safe-keeping. At all events, there was no proof that it had ever been probated at the domicile of the testator, and it was said in the opinion that the probate court evidently never intended nor believed that the order it made was an original probate of the will. In the opinion Mr. Justice Valentine used this language :

“We might say here that there is no statute in Kansas which in terms would authorize a will, not executed in Kansas nor by a person residing therein nor dying therein,- to be probated originally in Kansas, and all the implications of the statutes are against any such probating of any such will.” (Page 12.)

..The language quoted, however, was nof necessary to the decision. As observed, the original will was never in Kansas and it did not appear that there was any evidence before the probate court except the certified transcript, and the case turned on the fact that the will was not sufficiently probated or proved. The same question has often been decided, which is that an exemplified copy of a foreign will, although authenticated according to the act of congress by the official custodian of wills in a foreign jurisdiction, is not sufficient to prove a testamentary title to lands-, without an exemplification of the judgment of some court of competent jurisdiction admitting the will to probate. (Fenderson v. Mo. Tie & Timber Co., 104 Mo. App. 290.)

The question under consideration here has never been determined by this court. That a plain distinction is made in the statutes between a domestic will, which must be probated, and a foreign will, which may be admitted to record, must be conceded, and also that there is no provision in our statutes anywhere providing in express terms for the original probate of a foreign will in this state. The usual practice has always been for the original probate to be made in the foreign state or country, at the domicile of the testator, and, upon an authenticated copy showing probate there, for ancillary probate to be made here.

The sections from 7961 to 7965 of the General Statutes of 1901 all relate expressly to wills “executed, proved and allowed” in any state or country other than the United States. We have to determine, therefore,whether the fact that the statutes expressly provide for the allowance and admission to record in this state of an authenticated copy of a will duly probated in any state or country other than the United States was intended as a limitation on the jurisdiction of the probate court and excludes the power of that court to grant original probate of a foreign will. The reasons urged in support of that construction are far from satisfactory. It is frequently found necessary in the original probate of a domestic will for the probate court to send a commission to a foreign country or to another state to procure the testimony of a subscribing witness Who is beyond the jurisdiction of the court. So far as the likelihood of fraud on the court being perpetrated, the advantage would seem to be all in favor of the domestic court, which judicially determines for itself whether the will has been duly executed and is entitled to probate, instead of relying upon certified copies of proceedings in the courts of a foreign state. The contention of the appellants requires us to assume that the legislature attached more importance to an authenticated copy of a will than to the original instrument itself. The original is always the better evidence. Does the fact that the legislature provided a,n elaborate scheme for the allowance and recording here of the copy of a foreign will which had been originally probated in the foreign state or country and failed to make any express provision for the original probate here of such a will compel the conclusion that it intended thereby to limit the general jurisdiction of probate courts to take the proof of last wills and admit them to probate? We think not. The conclusion that we have reached is that the statute was not so intended; that its purpose was to enlarge, not to restrain, the jurisdiction of the probate court.

While probate courts are sometimes spoken of as courts of limited jurisdiction, they have jurisdiction over certain peculiar, exclusive subjects, and their jurisdiction is limited only in the sense that it is confined to the particular subject matter, but within their province they are courts of general jurisdiction. (Howbert v. Heyle, 47 Kan. 58; Higgins v. Reed, 48 Kan. 272; 23 A. & E. Encycl. of L. 116.) The existence of property within the state belonging to the estate of a deceased person is the fact which gives jurisdiction to the probate court, and the principle is of universal application that “every state has plenary power with respect to the administration and disposition of the estates of deceased persons as to all property of such persons found within its jurisdiction.” (Estate of Clark, 148 Cal. 108, 112. See, also, Shields v. Life Insurance Company, 119 N. C. 380; Putnam v. Pitney, 45 Minn. 242.)

A statute of Minnesota authorized the probate of a will executed according to the laws of that state, whether previously probated in another state or not, and without reference to the domicile of the testator. In Putnam v. Pitney, supra, referring to the power of the probate courts of the state over the estate of a deceased person within the state who was domiciled out of it, Mr. Justice Mitchell used this language:

“This power over the estates of deceased persons situate within its jurisdiction is inherent in any state or county on common-law principles of which the provisions of the probate code in that regard are but declaratory.” (Page 245.)

In volume 28 of the American and English Encyclopaedia of Law, at page 116, it is said:

“The jurisdictional fact is the existence of assets within the state. Under such circumstances, the probate court of the county in which the property is situated has jurisdiction in the premises, and even the original probate may be had in that county, though, as a general rule, a will should be proved in this first instance at the testator’s domicile.”

In the statute conferring jurisdiction (Gen. Stat. 1901, § 1974) the word “probate,” as it is used, applies -solely to original wills, and the copies of wills properly authenticated are not admitted to probate, but are admitted to record. It must, therefore, have been the intention of the section to give the probate courts the same authority which all courts of probate had at the common law. Nor could it subserve any useful purpose first to require the will to be proved in the foreign jurisdiction before it can be admitted here. At the common law the probate of a will in one state was of no validity whatever as affecting the title to lands in another. (Robertson v. Pickrell, 109 U. S. 608.) The law of the place where real estate is situated governs the formality of the transfer of such property, and at common law the original will could be probated wherever there was real property devised thereby. (M’Cormick v. Sullivant, 10 Wheat. [23 U. S.] 192; Robertson v. Pickrell, supra.) But it was often difficult to procure the original will after it had been probated in the courts of the domicile of the testator, and the evident purpose of the statutes in the various states authorizing copies of wills and their probate in a foreign country or sister state to be recorded and to have the same effect as the original was to overcome the hardships which often occurred by reason of the fact, that the original will, having been probated at the place of the testator’s domicile, .could not be had for original probate. The statutes, therefore, must have been designed to enlarge, not limit, the original jurisdiction which probate courts always exercised at the common law to probate the original will regardless of where it was executed. The authorities, while not numerous, support this view.

In Varner, ex’r, v. Bevil et al., 17 Ala. 286, the question determined was in all respects the sanie as that presented here. The will of Samuel Varner was made in the state of Mississippi, where he was domiciled at the time of his death. He owned real estate and personal property in Alabama, and the sole question was whether there could be an original probate of the. will in the courts of Alabama before the will had been proved in Mississippi. So far as appears in the opinion, the jurisdiction of the orphan’s court there was the same as our probate court. It was contended there, as here, that the court was of limited jurisdiction, that the statutes authorizing the admission and allowance of authenticated copies of foreign wills that had been proved in a foreign jurisdiction were a limitation on the power of the court, and that the probate court was without jurisdiction to admit the original will to probate. In the opinion it was said:

“The statutes of this state make no- express provision for cases of this kind. They authorize authenticated copies of wills, proved according to the laws of any of the United States, and which embrace or concern property within this state, to be proved and recorded subject to be contested and controverted, as the original will might be if offered. . . . We must then recur to the general law, as recognized by the code of international comity, for the rules which must guide us in arriving at a correct conclusion. . . . Our statute, which provides for the prolate in our courts of authenticated copies of foreign wills which have been proved according to the laws of any of the United States, or of any country out of the limits of the United States, was not designed to deny to our courts jurisdiction over the probate of the original will made in a foreign country, but disposing of property situated here. It but enlarges the jurisdiction of the court, enabling the parties to make the contest upon an authenticated copy of a foreign will, proved according to the law of the domicile, in the same manner they might have done upon the original. It could not have been intended by the legislature, in authorizing copies to be proved, to affirm that the originals, which furnished the better evidence, should not be allowed to be proved or contested. This would be to reverse the rule of law which gives the preference to the primary over secondary evidence.” (Pages 288-290.)

Other, authorities in point are: Stevens, Administrator, v. Gaylord, 11 Mass. *263; Spraddling & Keeton v. Pipkin, 15 Mo. 82; Wood v. Matthews, 73 Mo. 477; Hyman v. Gaskins, 5 Ired. Law [N. C.] 267; Jaques v. Horton, 76 Ala. 238; Gordon’s Case, 50 N. J. Eq. 397; Pepper’s Estate, 148 Pa. St. 5; 23 A. & E. Encycl. of L. 114 (2) ; 1 Woerner’s Am. Law of Adm. § 226.

We have not found, nor have we been cited to, any decisions holding the contrary.

The American will shows on its face that it was executed in contemplation of, and attested in accordance with, the laws of Kansas; it disposes of property here in a form not repugnant to the laws or policy of the state, and was entitled to be probated here without being first probated at the testator’s domicile.

The principal contention remaining is that the probate court of Kiowa county was without jurisdiction to appoint an administrator of the surviving partnership, inasmuch as the contract itself provided that the partnership should continue until 1911 notwithstanding the death of Herbert Marriage. The appellants’ contention that the partnership was not dissolved by the death of Herbert Marriage must be granted. Notwithstanding the general rule that the death of one partner dissolves the partnership,, it is otherwise when by will or.in the contract of partnership the deceased has provided that the partnership shall continue after his death. (Insley v. Shire, 54 Kan. 793; Blaker v. Morse, 60 Kan. 24; The Exchange Bank v. Tracy, 77 Mo. 594; 30 Cyc. 620, 653.) The real contention is that the probate court is only authorized to appoint an administrator of a surviving partnership estate where the death of one of the partners has caused a dissolution of the partnership and the surviving partner, having been cited to appear and qualify as administrator, has declined to do so; that where it is provided in the contract of partnership or by will of the deceased that the partnership shall continue notwithstanding his death the probate court has no jurisdiction over the partnership; and, further, that even though misconduct of the surviving partner might be sufficient to warrant a decree of dissolution by a court of equity the probate court could not exercise jurisdiction until such decree was rendered.

The fact that a partnership existed and the death of a partner gave the court jurisdiction to cite the survivor, and, upon his refusal to qualify, to appoint an administrator. Conceding that since it is not a court of general equity jurisdiction it has no authority to determine whether facts exist which would authorize a decree dissolving a partnership, still it had authority to determine whether the facts existed authorizing it to exercise jurisdiction and appoint an administrator, and its action can not be the subject of collateral attack. (Brenholts v. Miller, 80 Kan. 185; Wyandotte County v. Investment Co., 80 Kan. 492.)

The contention is of slight importance, however, for reasons that will be stated. The continuing clause of the partnership agreement provided that in the event of the death of Herbert Marriage the contract should be carried out by his executors to the same extent as if he were living. But his executor was not bound by the continuing clause to stand by and permit the partnership property to be dissipated through the fraud and collusion of the surviving partner. There can be-no question but that the abuse of trust, the misappropriation of the funds, the disagreement between the-executor and the surviving partner and the other facts shown by the findings were sufficient to authorize the-decree of dissolution. The utmost good faith is required of parties to a partnership. The court found that the surviving partner had placed the partnership - property and business beyond his control, and that he had acted collusively and fraudulently in dissipating-the partnership property and mingling it with property-belonging to others. If these things had occurred in the lifetime of Herbert Marriage a court of equity would not have hesitated to grant him relief by appointing a receiver and winding up the business. As the suits were brought by the plaintiff not only as administrator of the partnership estate but also as executor under the will, it would seem to make very little difference whether the probate court had authority to appoint him as administrator of the partnership estate or not. The petition in either event stated a cause of action, and the findings of fact are abundantly sufficient to warrant the judgment and decree dissolving and winding up the partnership. The partnership having-been dissolved, the probate co.urt had jurisdiction over the settlement of the partnership estate.

Although the evidence with respect to the Crebbin. land and the Herbert J. Marriage land was conflicting, we think it was sufficient to support the findings, and that the conclusions reached by the trial court ordering a conveyance of this real estáte were proper.

The judgment is affirmed.