Hopper v. Nicholas
| Decision Date | 29 December 1922 |
| Docket Number | 17323 |
| Citation | 106 Ohio St. 292,140 N.E. 186 |
| Parties | Hopper v. Nicholas |
| Court | Ohio Supreme Court |
Wills-Proceedings to probate-Jurisdiction of foreign court- Estoppel-Persons entering appearance and participating- Adjudication binds personal representatives, when-Full faith and credit-Judicial proceedings of another court.
1. when a proceeding to probate a will is pending in another state In a court of record, authorized by law to adjudicate the questions arising therein, and one fact necessary to establish the jurisdiction of the court is finding that the residence of the deceased was at death within the territorial jurisdiction of such court, and a person interested in such estate as an heir of the deceased, and a devisee under the will proposed to be probated, enters appearance in such pro ceeding, admits the jurisdictional fact, consents to adjudication, participates thereafter in the proceedings and receives benefits thereunder, such person and those claiming through and under him are estopped by the judgment there-in.
2. Record of adjudication by a court of record of another state authenticated as by law provided, has such faith and credit given it in the courts of the state of Ohio as it has by law or usage in the courts of the state where adjudication was had.
George H. Hopper died testate February 15,1898. He left surviving him a widow and three children, one of whom was Charles H Hopper.
On March 1, 1898, the widow filed petition in the surrogates court of the county and state of New York, asking for probate of the will of George H. Hopper, and alleging that the deceased was at the time of his death domiciled in New York. Citations were issued, and all persons interested, including Charles H. Hopper, appeared in the proceeding and consented to the probate of the will.
On March 9, 1898, the will was admitted to probate. Thereafter the widow, who was named as executrix and testamentary trustee, qualified, and the administration of the estate proceeded through and under the surrogates court of the city of New York, New York county and state, and there continues.
In the proceedings Charles participated from time to time, accepting benefits and being a participant in approval of accounts.
On May 15,1911, Charles H. Hopper married Irma Pritchard, who became and is Irma Hopper, the plaintiff in error, now the widow and administratrix of the estate of Charles H. Hopper, who died intestate June 17, 1916.
On November 15,1916, Irma Hopped filed petition in the surrogates court, wherein George H. Hopper's will had been probated. The purpose of the action was to procure construction and direction concerning the will of George H Hopper. This action was prosecuted to the court of last resort in the state of New York.
On October 9,1918, Irma Hopper filed her application in the probate court of Lake county, Ohio, seeking the original probate there of the same will of George H. Hopper that had been probated in the surrogates court of New York on March 9,1898.
Upon hearing, the Lake county probate court excluded from the evidence everything that took place in the various courts of the state of New York, held that it had jurisdiction, and admitted the George H. Hopper will to original probate. The court of common pleas of Lake county held such exclusion of proffered testimony to be error, and reversed and vacated the judgment and order of the probate court, which decision was affirmed by the court of appeals of Lake county.
Mr. George H. Eichelberger; Mr. W. K. Gardner and Messrs. Payer, Winch, Minshall & Karch, for plaintiff in error.
Messrs. Dustin, McKeehan, Merrick, Arter & Stewart and Messrs. Alvord & Blakely, for defendant in error.
The essential question here to be determined is the force and effect of the proceedings in the surrogates court of the county and state of New York on March 9,1898.
If such proceedings were in manner and form as provided by law, and the surrogates court acquired and had jurisdiction of the persons having an interest in and the matters concerned with the will and estate of George H. Hopper, the controversy is concluded by the provisions of Section 1, Article IV of the Constitution of the United States, which requires that "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state."
It is, therefore, necessary to determine the jurisdiction of the surrogates court of New York. The surrogates courts were created by an act of the New York legislature passed March 16, 1778. The constitutions of New York have continued these courts, and Section 15, Article VI of the Constitution of New York adopted in 1894, and since then in effect, reads, in part, as follows:
"The existing Surrogates' Courts are continued, * * * Surrogates and Surrogates' Courts shall have the jurisdiction and powers which the Surrogates and existing Surrogates' Courts now possess, until otherwise provided by the Legislature."
At and prior to March 1, 1898, Section 2472, New York Code of Civil Procedure, provided as to the general jurisdiction of surrogates courts, in part, as follows: "Each surrogate must hold, * * * a court, which has * * * jurisdiction, as follows:
etc.
etc.
etc.
etc.
etc.
Section 2473, New York Code of Civil Procedure, provided in part as follows:
"Where the jurisdiction of a surrogate's court to make * * * a decree or other determination, is drawn into question collaterally, and the necessary parties were duly cited or appeared, the jurisdiction is presumptively, and, in the absence of fraud or collusion, conclusively, established, by an allegation of the jurisdictional facts, contained in a written petition or answer, duly verified, used in the surrogates court," etc. Section 2475, New York Code 0£ Civil Procedure, provided in put as follows:
"Jurisdiction, once duly exercised over any matter, by a surrogate's court, excludes the subsequent exercise of jurisdiction by another surrogate's court over the same matter," etc.
Section 2476, New York Code of Civil Procedure, provided in part as follows:
Section 2614, New York Code of Civil Procedure, provided in part:
"A person designated in a will as executor * * * or any person interested in the estate * * * may present to the surrogate's court having jurisdiction, a written petition, duly verified, describing the will, setting forth the facts, upon which the jurisdiction of the court to grant probate thereof depends," etc.
Section 2615, New York Code of Civil Procedure, provided in part:
The record shows that the petition of Harriet A. Hopper, widow, and executrix named in the last will and testament of George H. Hopper, filed March 1, 1898, alleged in part that she was (a) "the executrix named in the last will and testament of George H. Hopper, late of the county of New York, deceased," (b) "that the deceased was, at the time of his death, a resident of the county of New York."
The petition further alleged that the petitioner, Harriett A. Hopper, was the widow of George H. Hopper; that Charles H. Hopper, a son, Jennie M. Nicholas, a daughter, and Florence Lynneth Fitch, a daughter, were all of the heirs of George H. Hopper. The prayer was "that a citation issue to the above named persons to attend the probate thereof and that the said last will and testament may be proved as a will of real and personal property and that letters testamentary may be issued thereon to the executrix who may qualify thereunder."
Thereafter waiver and entry of appearance was entered in that proceeding by all of the persons interested in the estate, as named in the petition therein, including the following, caption omitted:
"I Charles H. Hopper, the undersigned, an heir and next of kin of George H. Hopper, deceased, do hereby appear in person and waive the issue and service of a citation in the above entitled matter, and consent that said instrument, bearing date 29th day of December, 1896, be forthwith admitted to probate. "(Signed...
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