Verna Z. Shafer v. Children's Hospital Society of Los Angeles, California

265 F.2d 107, 105 U.S. App. D.C. 123, 1 Fed. R. Serv. 2d 754, 1959 U.S. App. LEXIS 4341

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 26, 1959
• Docket: 14478
• Status: Published

Opinions

BASTIAN, Circuit Judge.

This case was instituted by the filing of a petition by the sister of decedent, in material part alleging that one Clarence Edward Tunnell was a citizen of the United States, a resident of the District of Columbia, and died on October 29, 1957, in the District of Columbia; that decedent left a writing dated June 20, 1953, which is on file in the Office of the Register of Wills of the District of Columbia; that the writing is not a valid will, not having been witnessed as required by law; and that there was no other will of decedent. The petition further alleges that the decedent was unmarried and that his only heir at law and next of kin is the petitioning sister, appellant herein.

It is further alleged that decedent left no real estate in the District of Columbia but left certain unimproved real estate in San Diego, California, assessed at $1,240; that he left personal property in the District of Columbia of the value of some $25,000, consisting of shares of stock, cash and bank and building association accounts, and deposits of about $2,200 in building association accounts in California. The petition further alleges that the stocks, cash and bank and building association records were in the safe deposit box¹ of the decedent at the Union Trust Company of Washington, D. C., except that certain miscellaneous items had been taken over by the Metropolitan Police Department on the death of decedent; and that there was some tangible personal property of no value stored in Los Angeles, California. The petition prayed that the writing dated April 20, 1953, be denied probate and record, and that letters of administration be granted to the sister’s attorney.

By amendment to the petition, it was set forth that the decedent moved to the District of Columbia in 1933, since which time he continuously lived here and, from 1939, continuously maintained a residence at 1424 Massachusetts Avenue, N. W., in the District of Columbia, until the date of his death; and that decedent was a disabled veteran of World War I and had not been employed for a number of years prior to his death.

The paper, which was in the handwriting of testator, was unwitnessed. It contained, among others, the statement: “My legal residence is Los Angeles, California, it has been since 1916 and I enlisted there in the United States Army in 1917.” It left his estate to parties other than the sister of decedent. All parties beneficiary were served with substituted process; two of the three appeared in the administration cause, filed answer, and alleged that decedent was, at the time of his death and at the time of the execution of the writing, legally domiciled in California, that the writing was valid under the laws of that state, and that it would be presented for probate at Los Angeles.

The petition and the answer came on for hearing before the court but, apparently, without the taking of any testimony on the subject of domicile. The court entered the order appealed from, which reads as follows:

“This cause having come on to be heard upon the petition of Verna Z. Shafer for an order denying probate to a document on file in the Office of the Register of Wills for the District of Columbia, designated by the above named decedent as his Last Will and Testament, the Court having heard the argument of counsel, and it appearing that no petition for the probate of said document has yet been filed in this Court, and that a petition for probate of the said document has been filed on behalf of one of the beneficiaries named therein in the Superior Court of the State of California in and for the County of Los Angeles.

“It Is Hereby Ordered, Adjudged and Decreed That:

“The foregoing petition of Verna Z. Shafer is denied without prejudice to refiling such a petition when and if the aforesaid California Court declines to assume jurisdiction of the aforesaid petition for probate.”

Appellant filed a motion for rehearing, asking that the court frame an issue on the question of domicile, to be tried by a jury in the District Court. This motion for rehearing was overruled and this appeal followed.

Our dissenting brother is of the view that the appeal is premature, although appellees make no such claim. The file of the Office of the Register of Wills, of which we take judicial notice, shows the following minute entries on the face of the file jacket:

“Feb. 10, 1958 — Petition for letters of administration and amended petition argued and denied, with leave to reinstate if and when the California court denies jurisdiction. Judge Letts”

The order on this was filed fourteen days later, February 24, 1958.²

“Mar. 17, 1958 — Motion for rehearing and to have issue of domicile tried by jury; denied, Letts, J.”

Although it is apparent from the minute entry that the judge announced his decision on the motion for rehearing on March 17, 1958, it was not until April 16, 1958, that the order thereon was entered. In the meantime and on April 15, 1958, the notice of appeal was filed.

We do not know whether appellant treated the motion for rehearing as denied on March 17, 1958, the date of the minute entry, or whether the formal order of denial was handed to the judge on April 15 and not entered until the 16th. But in any event it is clear that, since the motion for rehearing tolled the time for appealing the order of February 24, 1958, the present appeal from that order may be said to be within time. Fed.R.Civ.P. 73(a), 28 U.S.C.A.

Nor do we think that the appeal should be dismissed on the ground that it offends Rule 54(b). The petition did not make two claims. It had only one purpose; namely, the securing of administration. Section 20-201, D.C. Code (1951), provides that on the death of any person leaving real or personal estate in the District, letters of administration on his estate may be granted, on the application of any person interested, on proof satisfactory to the probate court that the decedent died intestate. Accordingly, the petition properly asked for letters of administration and necessarily claimed that decedent died intestate, as he obviously did under the laws of the District of Columbia, the will being unwitnessed. That claim was just as necessary as was the claim that the decedent left personal or real estate in the District of Columbia.

It cannot be said that the order in this case was not a final order. It referred to the “petition” of appellant, and it was the “petition” which it dismissed. It left only a right to again petition if, and only if, and when the California court did not assume jurisdiction.

On the merits we think the court should have framed an issue on the question of domicile and should have set the case for hearing before a jury. Accordingly, the order of the District Court must be reversed and the cause remanded for that purpose.

It is clear that the District Court had jurisdiction to order the framing of this issue. Appellees here urged, and the District Court held, that “no petition for the probate of said document has yet been filed in this Court.” However, the question of the probate of the document was before the court, although only incidental to the plea for administration. Naturally no purpose would be served by filing such a petition for probate because the document could not be admitted to probate here, it not having been executed in accordance with the law in force in the District of Columbia. It seems to us that the prayer for rejection is all that is required, and appellant had asked, in accordance with the practice prevailing in the Probate Court, that administration be granted and the writing be denied probate.

The issue of domicile was thus raised in the answer of the appellees. The original petition, as do most petitions for probate or administration filed with the Register of Wills, simply alleged residence. The answer set up the claim that the domicile of the decedent was actually in California. This raised an issue which should have been tried before a jury. Domicile is a preliminary issue, even if there are other issues later to be tried. This issue being once determined, the court here would then be in position, if domicile be determined to be the District of Columbia, to grant administration or, if domicile be determined to be the State of California, to send the will to that state.

The fact is that the purported will has never left the District of Columbia, despite which the court in California acted. It further appears that the proceeding in the California court was instituted after appellant had commenced her action here for the denial of the writing and for letters of administration. The petition for letters of administration was filed here on November 29, 1957, and the records of the Register of Wills here indicate that it was not until January 27, 1958, that counsel for appellees obtained from that office a certified copy of the writing.³

The case of Overby v. Gordon, 177 U.S. 214, 20 S.Ct. 603, 44 L.Ed. 741, is closely akin to the instant case. There the proceedings originated in the Supreme Court of the District of Columbia, 13 App.D.C. 392 (now the United States District Court for the District of Columbia) on a petition filed January 23, 1896, to obtain probate, as the last will and testament of Hugh A. Haralson, of a paper purported to have been executed by him and for a grant of letters of administration, c. t. a. It was claimed that Haralson had been a resident of the District of Columbia at the time of his death and for several years prior thereto, but that he died in Georgia possessed of certain personal property of the value of $10,000, all of which, except an insignificant part thereof, was at the time of his death located in the District of Columbia. Issues were framed on April 10, 1896, on the claim that Haralson was at the time of his death a resident of the District of Columbia. The issues were as follows:

“1. Was the said deceased at the time of his death a resident of the District of Columbia?

“2. Was the said deceased at the time of his death a citizen and resident of the State of Georgia?

“3. Was the said deceased at the time of the making of the paper writing purporting to be his last will and testament a resident of the District of Columbia?

“4. Was the said deceased at the time of the making of the paper writing purporting to be his last will and testament a citizen and resident of the State of Georgia?

“5. At the time of his death did any considerable part of the personal estate of the said deceased lie within the District of Columbia?”

Before trial of these issues in February 1898, it appears that the assets within the District of Columbia had been removed by a caveator claiming to act as administrator of the estate of decedent under grant of letters of administration issued in May 1896 by a court of the State of Georgia, which proceedings had been initiated after those instituted in the District of Columbia. There was offered in evidence the transcript of the record of the appointment of the administrator in Georgia. The trial court, however, refused to admit this in evidence, and a jury returned a verdict, answering “Yes” to the first, third and fifth questions, and “No” to the second and fourth questions. Thereupon, an order was entered by the then Supreme Court of the District of Columbia admitting the purported will to probate and record as the last will and testament of the decedent and granting letters of administration, c. t. a. The Court of Appeals for the District of Columbia affirmed, 13 App.D.C. 392, and a writ of error issued from the Supreme Court of the United States. The Supreme Court affirmed, 177 U.S. at page 227, 20 S.Ct. at page 608, saying:

“We are of the opinion that the De Kalb county court possessed the power to determine the question of domicil of the decedent for the purpose of conclusively adjudicating the validity within the state of Georgia of a grant of letters of administration, but that it did not possess the power to conclusively bind all the world as to the fact of domicil, by a mere finding of such fact in a proceeding in rem. In other words, proceedings which were substantially ex parte cannot be allowed to have greater efficacy than would a solemn contest inter partes, which would have estopped only actual parties to such contest as to facts which had been or might have been litigated in such contest.

“Our conclusion being that the adjudication of the fact of domicil in Georgia made in the grant of letters by the De Kalb county court, and which was not made in a contest inter partes, was of no probative force upon the question of domicil in a contest in a court of the District of Columbia in the course of proceedings for the administration of assets within said District, it results that the supreme court of the District did not err in excluding the transcript in question whether tendered as evidence conducing to establish or as conclusively fixing the domicil of the deceased. And this conclusion is not affected in the least by the circumstance that on the trial of the issue as to domicil had in the supreme court of the District of Columbia it was claimed that the assets within the District of Columbia at the time of the filing of the caveat by the next of kin had been thereafter, without the sanction of the court, removed from the District of Columbia by one of the caveators.”

See also In re Grinnage’s Estate, 1938, 69 App.D.C. 370, 101 F.2d 695.

In the present case, obviously a real question exists as to the domicile of the decedent. On the one hand, we have the statement of the decedent; and on the other, we have the action of the decedent in his continuous residence here for many years and other factors indicating domicile here. This court, in Weitknecht v. District of Columbia, 1952, 90 U.S.App.D.C. 291, 294, 195 F.2d 570, 573, held that the question of domicile is one of fact. There the court said:

“To sum up: in determining domicile, actions are far more persuasive than words. See Texas v. Florida, 306 U.S. 398, 425-426, 59 S. Ct. 563, 83 L.Ed. 817. Edwards’ actions demonstrate that, whatever the purport of his declarations, his intent to return to his former domicile was not crystallized or settled. He entertained a great fondness for his boyhood home; he may well have desired to go back there before he died. But such a desire is not enough to avoid payment of tax obligations incurred in the place of actual abode. ‘A mere sentimental attachment will not hold the old domicile.’ District of Columbia v. Murphy, 314 U.S. 441, at page 456, 62 S.Ct. 303, 86 L.Ed. 329.”

It is true that the Weitknecht case involved the matter of taxes allegedly due the District of Columbia but the words of the court are particularly apposite here. Thus a sharp issue is presented which should be determined by the verdict of a jury. If it should be found, at the trial on the issue of domicile, that the domicile of the decedent was, at the time of his death, the District of Columbia, then the Probate Court here would be in position to deny the purported will probate and to grant letters of administration on the estate. If, on the other hand, the decedent is found to have been domiciled in California, then the Probate Court here could deny the petition for letters of administration, and the California fiduciary could then apply to the Probate Court here for ancillary letters testamentary.

The case of Emmert v. Stouffer, 1886, 64 Md. 543, 3 A. 293, 6 A. 177 and § 20-106 of the D.C.Code, both cited by our dissenting brother, have no pertinence to this proceeding. Section 20-106 provides that if administration be granted and a will disposing of the estate shall afterwards be proved according to law, and letters testamentary shall have issued thereon, the same shall be considered a revocation of the letters of administration. This has reference to a situation which happens not infrequently : administration has been granted and later a will is found. This section could not and does not have reference to a case where a will, or a paper writing purporting to be a will, is actually known to be in existence at the time administration is applied for. In this event the fact of a will or no will must be determined before administration can be granted, and where, as here, no question exists but that the writing was invalid under District of Columbia law, the question may be readily determined by the purported will itself.

In Emmert there was no question of a will invalid on its face because of lack of witnesses; in fact, the will was properly witnessed. The issue was incapacity to make a will. There was testimony as to mental capacity, on behalf of the petitioners who assailed the will, but no opportunity to be heard was afforded those persons interested in maintaining it. The court simply held that as there was no issue — affirmed on one side and denied on the other — its decision was pronounced upon an application purely ex parte; that it had no jurisdiction to decide the question of probate under those circumstances; and that the grant of administration would not prevent probate of a will.

Of course, we intimate no view whatsoever on the issue to be determined.

Reversed and remanded for further proceedings not inconsistent herewith.

1 . Tlie records of the Office of the Register of Wills disclose that the writing in question was removed from the box by a Deputy Register of Wills and filed in the Office of the Register.

2 . This is the order which is appealed.

3 . From the brief of appellees, and from what we were told at the oral argument, it appears that a copy of the document was admitted to probate and record in California on April 3, 1958, and one Axelrad was appointed administrator with the will annexed. So far as appears, appellant never was personally served in California, nor did she appear there; apparently, substituted process was issued by that court. Thus the proceeding there was essentially in rem. This order was not before the District Court.