Corrigan v. Jones

• Decision Date: 28 March 1890
• Citation: 14 Colo. 311,23 P. 913
• Parties: CORRIGAN et al. v. JONES.
• Court: Colorado Supreme Court

23 P. 913

14 Colo. 311

CORRIGAN et al. v. JONES.

Supreme Court of Colorado

March 28, 1890

Error to Bent county court.

Syllabus by the Court

1. A will should be first admitted to probate in the jurisdiction of the testator's last domicile; but in admitting a will to probate the court must be presumed prima facie to base its adjudication respecting the last domicile upon sufficient evidence, and, under such circumstances, the probate and record thereof can only be questioned by some appellate or direct proceeding.

2. The general rule is that letters testamentary or of administration have no extraterritorial force. When such letters have been duly granted in the jurisdiction of deceased's last domicile, they are the principal letters of authority, and those granted in other jurisdictions are ancillary.

3. A will admitted to probate in the court of another state having jurisdiction of such matters is, on the presentation of the duly-certified record thereof, entitled to be admitted to probate and record in this state, and letters testamentary or of administration may issue thereon as in other cases. The probate and record, under such circumstances, would seem to be mandatory; but the court is invested with discretion in the matter of issuing letters, but the discretion is not arbitrary. It must be sound and reasonable,--such as will secure the administration of the estate according to the will of the deceased, as well as with due regard to local creditors.

Stallcup & Shafroth, for plaintiffs in error.

George Q. Richmond, for defendant in error.

ELLIOTT J.

In October, 1884, the last will and testament of Owen Doherty deceased, was admitted to probate and record in the probate court of Jackson county, state of Missouri, and thereupon letters testamentary were issued by said court to Bernard Corrigan, who was appointed executor in and by said will. The executor, Corrigan, is one of the plaintiffs in error in this proceeding. The property of the testator, as described in the will, consisted of 'cattle and cattle ranches in Bent and Las Animas counties, in the state of Colorado.' Corrigan having procured a transcript of the record of the Jackson county probate court in the matter of the probate of said will, duly certified in the manner required by the act of congress in such cases, presented the same to the Bent county court, and asked that said will be admitted to probate and record in that court as provided by the statute of this state in such cases. The judge of the Bent county court thereupon issued a citation to the defendant in error, James C. Jones who had theretofore been appointed administrator of said Owen Doherty by said Bent county court, notifying said Jones to appear and show cause, if any he had, why said will should not be admitted to probate in said Bent county court, and letters testamentary be granted to said Corrigan, and the letters of administration heretofore granted to said Jones be revoked. Jones appeared, and by his attorney protested against the probate of said will, and against the granting of letters testamentary to said Corrigan. The grounds of protest may be considered under two principal heads: First, that the probate of the will by the Missouri court was invalid, inasmuch as the domicile of Doherty at the time of his death was in Bent county, Colo., and not in Jackson county, Mo.; second, that letters testamentary could not lawfully issue to said Corrigan, he being a non-resident of the state of Colorado. Corrigan, by his attorney, filed a written brief and argument in response to the protest of Jones. The court, having considered the argument of counsel, without taking any evidence as appears by the record, rendered judgment refusing to admit said will to probate, and refusing to grant letters testamentary to said Corrigan until the will of said Doherty should be proved to the court in a satisfactory manner. To reverse this adjudication the case is brought to this court by writ of error. Plaintiffs in error rely upon section 27 of the statute of wills, (chapter 115, Gen. St. Colo.,) in support of their claim to have the will of Doherty admitted to probate in this state upon the certified record of its probate in the Missouri court. In support of his protest on the ground of domicile, appellees relies upon the recital at the beginning of the will, as follows: 'I, Owen Doherty, of the county of Bent, in the state of Colorado, temporarily residing in Kansas City, Missouri.' The will bears date February 7, 1884. It was offered for probate in the Missouri court on July 8th of the same year. The precise date of Doherty's death does not appear, but it may have been five months after the execution of the will; so that, whatever weight the recital in the will may have as evidence of the testator's domicile at the time of its execution, it is not conclusive of that question, and is but a circumstance indicating his domicile at the time of his decease. Besides, the record of the probate of the will declares the same to be 'the last will and testament of Owen Doherty, deceased, late of Jackson county.'

In admitting the will to probate, the Missouri court must be presumed prima facie to have based its adjudication respecting the domicile of Doherty at the time of his decease upon sufficient evidence. Under such circumstances, the probate of the will, and the record thereof, can only be questioned by some appellate...