Holyoke v. Holyoke's Estate

• Decision Date: 09 June 1913
• Citation: 87 A. 40,110 Me. 469
• Parties: HOLYOKE v. HOLYOKE'S ESTATE. HOLYOKE et al. v. HOLYOKE'S ESTATE.
• Court: Maine Supreme Court

87 A. 40

110 Me. 469

HOLYOKE

v. HOLYOKE'S ESTATE.

HOLYOKE et al.

v. HOLYOKE'S ESTATE.

Supreme Judicial Court of Maine.

June 9, 1913.

[Copyrighted material omitted.]

Appeals from Supreme Judicial Court, Penobscot County, at Law.

Proceedings for probate as a foreign will of the will of Frank H. Holyoke, deceased. From a decree allowing the probate, Cora M. Holyoke, widow, and Harry D. Holyoke and others, appeal. Dismissed, and decree of probate court affirmed, and case remanded for further proceedings.

Argued before SAVAGE, C. J., and SPEAR, CORNISH, KING, BIRD, and PHILBROOK, JJ.

George H. Worster, of Bangor, for executors.

Stearns & Stearns, of Bangor, for guardian of Madeline and Marjorie Holyoke. E. C. Ryder and Charles H. Bartlett, both of Bangor, for Bangor Children's Home, Home for Aged Men, and Bangor Theological Seminary.

F. A. Floyd, of Bangor, for Brewer Public Library.

Fellows & Fellows, of Bangor, and Hugh W. Ogden, of Boston, Mass., for Cora M. Holyoke.

Herbert L. Harding, of Boston, Mass., and Fellows & Fellows, of Bangor, for Harry and Sidney A. Holyoke.

SAVAGE, C. J. These appeals are from the decree of the judge of probate in Penobscot county, allowing, as a foreign will, the will of Frank H. Holyoke. One of the appellants is the widow, and the others the sons, of Frank H. Holyoke, by a prior marriage. Mr. Holyoke, who had been a lifelong resident in Maine, first at Brewer and then at Bangor, removed to Pasadena, Cal., in 1910, and died there, October 3, 1911. His will, which was executed August 8, 1911, was probated as a domestic will in the superior court for Los Angeles county, Cal., a court having jurisdiction in matters of probate. The executors named in the will, having been qualified as such in California, now seek to have the will probated as a foreign will in Penobscot county, in which county there is real estate on which the will can operate. On petition therefor the judge of probate allowed the will, and the appellants appealed to the Supreme Court of Probate. The case is reported to the law court for its determination upon so much of the evidence as is legally admissible.

The vital question of fact is whether Mr. Holyoke changed his domicile from Maine to California. The appellants contend that, although he moved personally to California and resided there the last 16 months of his life he never became domiciled there, and therefore that the court in California had no jurisdiction to allow his will as a domestic will. If this contention be correct, it follows that it cannot be allowed here as a foreign will. If Holyoke's domicile at the time of his death was in Maine, the probate court here has original jurisdiction to admit his will to probate, and the court in California had no such jurisdiction.

The statute (R. S. c. 66, § 14) provides that "a will proved and allowed in another state or county, according to the laws thereof, may be allowed and recorded in this state in the manner and for the purposes hereinafter mentioned. A copy of the will and the probate thereof, duly authenticated, shall be produced by the executor, or by any person interested, to the judge of probate in any county in which there is estate, real or personal, on which the will can operate." Then follow provisions as to notice and hearing.

It is contended in argument that the decree of the judge of probate in this case was not filed on a day when the probate court was open, and was therefore void. Without discussing what would have been the legal consequence if such had been the fact, it is sufficient to say that the case shows that such was not the fact. The decree was filed on the day of an adjourned session of the court.

The appellants also contend that the copy of the record of the court in California, filed with petition here, was not "duly authenticated" as required by section 905, Rev. St. (U. S. Comp. St. 1901, p. 677), so as to bring it within the operation of article 4 of the federal Constitution, which declares that "full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." Section 905, above referred to, provides that "the records and judicial proceedings of the courts of any state or territory * * * shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, that the said attestation is in due form." It is contended that the copy of the record was not authenticated by the clerk, but by the deputy clerk. And such an attestation was held fatal in Willock v Wilson, 178 Mass. 68, 59 N. E. 757. The record here, however, does not support the contention. It appears that some parts of the records of the various proceedings in the California court were attested by deputies of the clerk, but the final authentication of them in the copy filed here was under the hand of the clerk himself; and that is sufficient in that respect. Other irregularities in the proceedings were suggested in the reasons of appeal, but they are not now relied upon.

Starting, then, with a sufficient record of the judgment in California, what is its effect? The superior court in California has not only probate jurisdiction, but it is a court of general jurisdiction. Robinson v. Fair, 128 U. S. 87, 9 Sup. Ct. 30, 32 L. Ed. 415. Its records import a verity. Otto v. Doty, 61 Iowa, 23, 15 N. W. 578. In a case where it had jurisdiction in fact, its judgment is conclusive as to all facts which are necessary to the establishment of a will, and as to the regularity of its proceedings and their conformity to the law of the state where they were had. Such is the effect of the "full faith and credit" clause in the federal Constitution. Crippen v. Dexter, 13 Cray (Mass.) 330; Dublin v. Chadbourn, 16 Mass. 433. But if the court had not jurisdiction in fact, its judgment is conclusive of nothing. And whether it had jurisdiction in fact is always open to inquiry, when the efficacy of the judgment is questioned. The "full faith and credit" clause does not apply in such a case. Gregory v. Gregory, 78 Me. 190, 3 Atl. 280, 57 Am. Rep. 792; Smith v. Central Trust Co., 154 N. Y. 333, 48 N. E. 553. But it is considered that the judgment is prima facie proof of jurisdiction; that is to say, it is sufficient unless attacked.

This being so, the proponents contend that the burden is on the appellants to show that the California court did not have jurisdiction; while, on the other hand, the appellants contend, it being unquestioned that Mr. Holyoke had his domicile in Bangor, Me., until 1910, that the burden is on the proponents to show that he changed it to California. The rule as to the succession of property is commonly stated to be that the domicile of origin, the prior domicile, is presumed to continue until another sole domicile has been acquired. Mather v. Cunningham, 105 Me. 326, 74 Atl. 809, 29 L. R. A. (N. S.) 761, 18 Ann. Cas. 692; Leach v. Pillsbury, 15 N. H. 137. A person can have but one such domicile at a time. Gilman v. Gilman, 52 Me. 165, 83 Am. Dec. 502. And the burden is on the party who asserts the change. And since the question of jurisdiction depends upon the proof of domicile, a question first in the order of proof, we think it is sufficient for him who attacks jurisdiction to show that the domicile of origin was in a state other than the one which exercised jurisdiction. The burden is then on him who asserts a change to prove it. The presumption of continuance of domicile is enough, until disproved.

When this case was taken out to be reported, all evidence offered by either side was received; but it was stipulated that the case should be determined upon the evidence legally admissible. Besides the evidence of the acts of Mr. Holyoke, there was much evidence offered by the proponents, and some by the appellants, as to declarations made by him orally before and after he went to California in 1910, and by letters afterwards. The proponents claim that the declarations offered by them tended to show an intention to make California his permanent home, while the appellants claim that those offered by them tended to show an intention not to remain there, but to return after he had accomplished a specified purpose. Of the declarations, some were made to his wife, some to his attorneys, both in this state and In California, and others to various acquaintances. Some of the declarations were made in connection with acts or business being done by him at the time relating to his going to or remaining in California, and some were not.

The proponents object to the evidence of declarations made by him to his wife, on the ground that they are privileged. The appellants object to evidence of communications to his attorneys on the ground that they are likewise privileged. They challenge generally the admissibility of all declarations, as to intention, except such as come within the res gestae rule; that is, such as, being contemporaneous with some act, tend to illustrate, explain, or give it character. They contend that most of these declarations should be excluded for the reason that they were made at a time when Holyoke had a motive to make testimony for himself. Lastly, it is urged that they should be rejected as self-serving declarations.

We will determine the merits of these contentions before we consider the evidence in detail; and first as to communications made to the wife. They were made in part while the husband and wife were living together, and in part while they were living in separation.

1. Confidential communications between husband and wife are in general strictly privileged. So rigid is the rule that death of the communicating party does not terminate the privilege. 4 Wigmore on Evidence, § 2341; Hughes on Evidence, p. 312. The communications originate in confidence....