In re Coppock's Estate

• Decision Date: 02 March 1925
• Docket Number: 5572.
• Citation: 234 P. 258,72 Mont. 431
• Parties: In re COPPOCK'S ESTATE. v. COPPOCK. WHARTON et al.
• Court: Montana Supreme Court

234 P. 258

72 Mont. 431

In re COPPOCK'S ESTATE.

WHARTON et al. v. COPPOCK.

No. 5572.

Supreme Court of Montana

March 2, 1925

Appeal from District Court, Fergus County; Rudolf Von Tobel, Judge.

Proceedings by Ida J. Wharton and another to revoke an order admitting to probate the will of Grace Lydia Coppock, in which Ed. G Coppock appeared as contestee. From a judgment dismissing the contest, contestants appeal. Affirmed.

Ralph J. Anderson, of Lewistown, for appellants.

E. K Matson, of Lewistown, for respondent.

HOLLOWAY J.

This cause was submitted to the trial court upon an agreed statement of facts, from which it appears that on October 12 1921, Grace Lydia Coppock, a citizen of the United States residing in China, made and published her last will and testament and three days later died at Shanghai, leaving as her only heirs at law a sister, Ida J. Wharton, and two brothers, Charles E. Coppock and Ed. G. Coppock. Her estate consists principally of personal property in Fergus county. Mont., and the proceeds of a life insurance policy. By the terms of the will Miss Margaret Mackinlay, of Shanghai, was nominated executrix to have charge of the estate in China and Ed. G. Coppock was nominated executor to manage the estate in this country. Aside from some inconsequential items, all of the property was bequeathed to the National Committee of the Young Women's Christian Association of China in trust for charitable and benevolent purposes. The will was first admitted to probate by the United States District Court for China and letters testamentary were issued to Miss Mackinlay. Later a duly authenticated copy of the will and probate thereof was presented to the district court of Fergus county, and such proceedings were had under the provisions of sections 10040 and 10041, Revised Codes, that the will was admitted to probate and letters were issued to Ed. G. Coppock.

Ida J. Wharton and Charles E. Coppock then instituted this proceeding to secure a revocation of the order admitting the will to probate in Fergus county, but a judgment was rendered dismissing the contest, and they appealed.

It is too well settled to be open to further controversy that if the court which admitted the will to probate in the first instance had jurisdiction of the subject-matter, its judgment is conclusive as to the validity of the will. State ex rel. Ruef v. District Court, 34 Mont. 96, 85 P. 866, 6 L. R. A. (N. S.) 617, 115 Am. St. Rep. 510, 9 Ann. Cas. 418. But it is equally well settled that neither the full faith and credit clause of the Constitution (section 1, art. 4, U.S. Const.), nor the legislation enacted in pursuance thereof, compels the courts of this state to give recognition to the judgment of the District Court in China if that court did not have jurisdiction to render the judgment in question. Burdick, The Law of the American Constitution, 477. In other words, the question of jurisdiction may be raised by these contestants (In re Mauldin's Estate, 69 Mont. 132, 220 P. 1102), and the purpose of this proceeding is to have that question determined.

Counsel for both parties assume that under the common law which is enforced by the United States court in China, the jurisdiction to administer primarily upon an estate depends upon the domicile of the deceased at the time of his death (23 C.J. 1010), and for the purpose of this appeal we adopt that theory even in the broad terms stated.

It is a general rule that the place of one's residence is prima facie the place of his domicile (Ennis v. Smith, 14 How. 400, 14 L.Ed. 472); but counsel for appellants contend that the rule cannot have application here, for, it is contended earnestly, a citizen of the United States cannot acquire a domicile in China or in any other oriental country which by capitulations or treaties extends to our nationals residing there, exemption from the operation of the ordinary local laws, and support for this theory is to be found in certain decisions of English courts. In the leading case In re Tootal's Trust, L. R. 23, Ch. Div. 532, decided in 1889, it was held that a British national could not acquire a domicile in China. The decision by Justice Chitty was grounded principally upon the doctrine of immiscibility announced by Sir William Scott (Lord Stowell) in The Indian Chief, 3 C. Rob. Adm. 22, the statement by Dr. Lushington in Maltrass v. Maltrass, 1 Rob. Ecc. 67, to the effect that "every presumption is against the intention of British Christian subjects voluntarily becoming domiciled in the dominions of the Porte," and the assumption that an individual cannot become domiciled in a community "which is not the community possessing the supreme or sovereign territorial power." The decision was cited approvingly in Abd-ul-Messih v. Farra, L. R. 13 App. Cas. 431, in The Derfflinger, 1 Br. & Col. P. C. 386, and in Casdagli v. Casdagli, 87 L. J. R. Probate,...