Appeal of Murdoch

• Decision Date: 03 March 1909
• Citation: 72 A. 290,81 Conn. 681
• Parties: Appeal of MURDOCH et al.
• Court: Connecticut Supreme Court

72 A. 290

81 Conn. 681

Appeal of MURDOCH et al.

Supreme Court of Errors of Connecticut.

March 3, 1909.

Appeal from Superior Court, New Haven County; Joel H. Reed, Judge.

Application by John Murdoch and others against Annie A. Murdoch, executrix of the will of William B. Murdoch, deceased, to revoke a grant of letters testamentary to defendant. From a decree dismissing the application, the applicants appeal. Affirmed.

William S. Murdoch, of Mississippi, signed in Mississippi, on August 5, 1891, a holographic paper, reading as follows:

"Cain Mount, Claiborne Co., Mississippi,

August 5, 1891. This my last will and testament:

"1st. I leave to my wife, Annie A. Murdoch, the entire use and management of all my property, both real and personal during her life. At her death it all goes to my living brothers and sisters, or their heirs.

"2nd. No inventory of my estate is to be taken.

"3rd. My wife has perfect right to sell any of it as may be for the best.

"4th. I ask that my friend James M. Gillespie of Tensas parish, La. and my cousin John W. Bristol of New Haven Connecticut act as coexecutors with my wife and befriend and aid her in her business. They give no bond, nor is it necessary for them to qualify as executors in any court. Simply by furnishing a certified copy of this will, the signature of either of them with the signature of my wife, is all that is necessary to sell or transfer any of the property, as they may deem best.

"5th. No account is to be kept of the disposition or management of my property—my wife to have full use, and manage it the best she can, with advice of the two coexecutors, and at her death, what is left goes to my brother & sisters or their heirs.

"6th. I leave with this a letter to certain friends and relatives, asking them to befriend my wife the balance of her life.

"[Signed] W. B. Murdoch.

"To my brothers and sisters, to my cousin John Butler and Louis Bristol, to my friends John E. Carey, E. W. Constance and Wade Benjamin and my two friends that I have asked to act as coexecutors to my will:

"My last request is that you will befriend my wife and see her protected from some who might be her enemies. I have talked on this subject with some of you.

"W. B. Murdoch."

He died April 24, 1903. By the laws of Mississippi holographic wills are valid, though unattested, and the "court of chancery" has "full jurisdiction" over "matters testamentary and of administration." The paper was presented for probate to the court of chancery, which admitted it to probate, and on May 16, 1903, appointed Annie A. Murdoch sole executrix of the will, James Gillespie being dead, and John W. Bristol having declined to act as executor. On June 17, 1903, she filed in the court of probate for the district of New Haven an authenticated and exemplified copy of the will and the record of the proceedings in the court of chancery, and an application for its admission to probate by the court of probate and the issue of letters testamentary. At the time of his death William B. Murdoch owned real estate in New Haven, and also personal property in the hands of residents of New Haven. An order was thereupon issued by the court of probate that the application be heard on July 1, 1903, and that public notice to all parties interested in the estate of Wil liam B. Murdoch be given by publishing the order three times in a newspaper having a circulation in the probate district. This notice having been given, the hearing was continued from July 1st to September 8th, when the application was granted, the will admitted to probate, and ordered on record, and letters testamentary issued to Mrs. Murdoch as executrix, on her giving a probate bond, which was duly approved. The application to the court of probate to reopen the matter and set aside these orders and decrees was made by the appellants October 17, 1905.

William H. Ely, for appellants. George D. Watrous, for appellee.

BALDWIN, C. J. (after stating the facts as above). Whether a man dies testate or intestate is to be determined by the law of his domicile, in respect to his personal property, and, in respect to his real estate, by that of the state or country witnin which such real estate is situated. Gen. St. 1902, §§ 293, 305, provide that "all wills executed according to the laws of the state or country where they are executed may be admitted to probate in this state, and shall be effectual to pass any estate of the testator situated in this state," and that, "when a will conveying property situated in this state has been proved and established out of this state, in and by a court of competent jurisdiction, the executor of said will, or any person interested in said property, may produce to the court of probate in the district in which any of said property is situated a duly authenticated and exemplified copy of such will, and of the record of the proceedings proving and establishing the same, and request that such copies be filed and recorded; and if, upon due hearing had after public notice and such citation as said court shall order, no sufficient objection be shown, said court shall order said copies to be filed and recorded, and they shall thereupon become part of the files and records of said court, and shall have the same effect upon the property so conveyed as if said will had been originally proved and established in said court of probate."

The proceedings before the court of chancery of Mississippi were such as to entitle any person interested in the property of William B. Murdoch, within the district of New Haven, to apply to the court of probate for that district to have duly authenticated and exemplified copies of the record of them made part of its files and records. They also, when proved by such copies, conclusively established that the paper admitted to probate was entitled to probate in Mississippi as the will of William B. Murdoch, and that Annie A. Murdoch was designated in it as an executor, for no court can make an original appointment of an executor; its power being limited to recognizing and approving or disapproving an appointment made by the testator. Terry's Appeal, 67 Conn. 181, 186, 34 Atl. 1032. The will of Mr. Murdoch does not directly name his wife as an executrix. It, however, names two others who are asked to act as coexecutors with her, and "aid her in her business," but are exonerated from giving any bonds or qualifying as executors in any court. It also gives Mrs. Murdoch the entire use and management, without account, of all the estate during her life, with power of sale. Whether the ample authority thus bestowed upon her, coupled with the provision as to coexecutors, and that those asked to act in that capacity need not qualify before any court, justified the conclusion that the testator intended...