Dallinger v. Richardson

• Decision Date: 16 May 1900
• Citation: 176 Mass. 77,57 N.E. 224
• Parties: DALLINGER v. RICHARDSON et al. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

176 Mass. 77

57 N.E. 224

DALLINGER v. RICHARDSON et al. (two cases).

Supreme Judicial Court of Massachusetts, Middlesex.

May 16, 1900

COUNSEL

G. A. A. Pevey, for plaintiff.

F. M Wier and W. H. Moody, for defendants.

OPINION

HAMMOND J.

Upon the evidence the court was justified in finding that for many years prior to and at the time of his death the only home of the testator was in Washington, and that 'for many years prior to and up to the time of his death he had the intention and purpose of not returning to Cambridge to live, but of always remaining, living, and having his home in Washington,' and upon these and the other facts found as stated in the report the ruling that the 'testator was not an inhabitant of Cambridge at the time of his death' was correct, and the ruling must stand as the law of the case, unless the proceedings which have taken place in the probate court of Middlesex county conclusively show that for the purposes of this case the residence of the testator at the time of his death must be regarded as in Cambridge. The plaintiff contends that those proceedings are thus conclusive, and that parol testimony is inadmissible to vary or contradict the record. For the purposes of this discussion we assume, without deciding, that it sufficiently appears by the record of the probate court that the court found that the residence of the testator was in Cambridge, and that jurisdiction was assumed upon that ground. Prior to Rev. St c. 83, § 12, where upon a petition for administration the probate court had adjudicated upon the place of residence of the deceased, and upon that adjudication had assumed jurisdiction, and proceeded to the settlement of the estate the true place of residence was open to inquiry in collateral proceedings, even though such an inquiry should result in showing that the adjudication was wrong, and the subsequent proceedings were all void for want of jurisdiction. The authorities on this are reviewed and the reasons for the rule are stated in Jochumsen v. Bank, 3 Allen, 87. Rev. St. c. 83, § 12, with some unimportant changes, is now Pub. St. c. 156, § 4, and is as follows: 'The jurisdiction assumed in any case by the court, so far as it depends on the place of residence of a person, shall not be contested in any suit or proceeding, except in an appeal in the original case, or when the want of jurisdiction appears on the same record.' Doubtless this provision was inserted in the Revised Statutes in consequence of several prior decisions of this court, such as Cutts v. Haskins, 9 Mass. 543, where the law as then existing seemed sometimes to work hardship to innocent persons. See note to this section by the commissioners on the Revised Statutes. Since this statute, whenever there appears upon the record of the probate court an adjudication, whether in accordance with the truth or not, as to the residence of a person, the jurisdiction of the court, so far as it depends upon that question, is conclusively presumed in any proceeding involving the validity of any order or decree of the court, or of any proceedings thereunder. In the case now before us that rule is applicable to the defendants. They cannot deny the validity of their appointment as executors, nor that, if the plaintiff's claim is due, they are answerable for it. McFeely v. Scott, 128 Mass. 16; Derome v. Vose, 140 Mass. 575, 5 N.E. 478; Cummings v. Hodgdon, 147 Mass. 21, 16 N.E. 732. It is to be noted, however, that the thing which cannot be contested is the jurisdiction of the court, and that the statute does not say that the place of residence shall not be contested in any other proceeding. The taxes upon which this suit is brought were assessed by the assessors of Cambridge under Pub. St. c. 11, § 20, cl. 7, the material parts of which are as follows: 'The personal estates of deceased persons shall be assessed in the place where the deceased last dwelt. Before the appointment of an executor or administrator it shall be assessed in general terms to the estate of...