In re Ellis' Estate

• Decision Date: 06 December 1893
• Docket Number: No. 8455.,8455.
• Citation: 55 Minn. 401
• Parties: <I>In re</I> MATTHEW ELLIS' ESTATE.
• Court: Minnesota Supreme Court

Page 401

55 Minn. 401

In re MATTHEW ELLIS' ESTATE.

No. 8455.

Supreme Court of Minnesota.

Argued November 10, 1893.

Affirmed December 6, 1893.

Appeal by Rachel Ellis, Jane Walker and Charles Ellis, from an order of the District Court of Ramsey County, Chas. E. Otis, J., made May 24, 1893, denying their motion for a new trial.

Flora Ellis of St. Paul filed her petition in the Probate Court of Ramsey County, December 13, 1892, praying to be appointed administratrix of the estate of Matthew Ellis, deceased. She represented that she was his widow, that he died in that City December 7, 1892, intestate and without issue or surviving parent, and possessed of real and personal property valued at $60,000. Jane Walker, a sister, and Charles Ellis, a brother, contested the application, on the ground that deceased executed a will giving to them a large part of his property which he did not revoke, while possessing testamentary capacity. Rachel Ellis also contested, on the ground that she was his widow and that a divorce obtained by her in Wisconsin at his request on March 27, 1884, was void for want of jurisdiction of the Wisconsin Court over the parties, they being residents of St. Paul, and that his subsequent marriage to the petitioner, Flora Ellis, on September 2, 1886, was void. The Probate Court on January 26, 1893, granted the petition and appointed Flora Ellis sole administratrix. The contestants severally appealed to the District Court. A return was made and the contention was heard March 22, 1893. It was shown that deceased made a will in July, 1891, which he destroyed December 31, 1891, but its contents were not satisfactorily proved. He was in ill health and his brother and sister claimed he had not testamentary capacity at the time he destroyed the will, but the Court refused to receive evidence of his incapacity to revoke the will, because the provisions of the will were not clearly and distinctly proved by two credible witnesses to the satisfaction of the Court. The Court found that the divorce was valid, that Flora Ellis was the lawful wife of the deceased, that he died intestate and that she was entitled to letters of administration upon his estate and directed judgment affirming the determination of the Probate Court. The appellants made and settled a case containing all the evidence and their exceptions and moved for a new trial. This was denied and they appealed.

F. G. Ingersoll and Chas. N. Bell, for appellants.

M. L. Countryman and Stringer & Seymour, for respondent.

GILFILLAN, C. J.

Appeal from an order appointing an administratrix. Stating the history of the matters involved in chronological order, in 1869 Matthew Ellis and Rachel Cottrell, then residents in Wisconsin, intermarried in that state, and resided therein — the latter part of the time at Hudson — from the time of their marriage till October, 1883, when they came to St. Paul, Minnesota. February 29, 1884, she commenced by proper personal service of summons an action against him for divorce in the Circuit Court for the county of St. Croix, (in which Hudson is situated,) in said state. Her complaint was sworn to by her, and it alleged, among other things, that she then was, and for more than three years last past had been, a resident of said county and state, and that for more than a year prior to bringing the action the defendant had willfully deserted and refused to live and cohabit with her; and it demanded judgment dissolving the marriage, and requiring the defendant to pay her the sum of $8,000 alimony. The defendant filed an answer, not raising any substantial issues, and the parties made and filed a stipulation agreeing upon the alimony at $6,150 and a horse, carriage, robes, etc., and all the defendant's household goods, except his library. The answer and stipulation suggest an agreement between the parties for a divorce, — a suggestion which ought to have caused the court, and we must assume that it did, to require strict and ample proofs of the facts showing a cause of action, and which would have been influential upon an application to vacate the judgment rendered on the ground of collusion and fraud upon the court. But that did not go to the jurisdiction of the court over the case. A reason for deciding against the plaintiff, or a fraud upon the court as to the judgment to be rendered, or the character of the motive that induced the bringing the action, does not affect the jurisdiction. March 27, 1884, judgment in that action was rendered, dissolving the marriage between the parties, and allowing the plaintiff therein the alimony stipulated; and that alimony was paid. September 2, 1886, Matthew Ellis and Flora Wilson intermarried, and they lived together as husband and wife until December 7, 1892, when he died in St. Paul, Ramsey county, in this state.

Flora Ellis, the second wife, filed a petition in the Probate Court of said county, stating the necessary jurisdictional facts, alleging that Matthew Ellis died intestate, and that she was his widow, and asking to be appointed his administratrix. On the day appointed for the hearing Rachel Ellis appeared, denied that Flora was the widow, alleged that she was the widow, and asked that she be appointed administratrix. At the same time appeared a brother and sister of deceased, representing that the deceased had made a will, still in force, and asking the court to make the proper order or decree in the premises. The Probate Court appointed Flora administratrix, and on an appeal to the District Court, in which the court heard all the parties, that court affirmed the decision of the Probate Court.

Before taking up the principal question in the case, the only one which seems to us of sufficient importance, as presented by the evidence, to call for consideration at any length, we will dispose of others of less importance. It is claimed by appellants that the act of 1889 known as the "Probate Code" was not passed in the house of representatives in the manner prescribed by the constitution, because it does not appear from the house journal that the bill was read on three different days, or that the rule was suspended, as required by the constitution. It is not clear to us what the Probate Code has to do with the case, for the rule providing who shall be entitled to administration was the same under the prior law as under that act, and the evidence of a will offered was not sufficient to establish a will, not produced, either under the prior law or the Probate Code. Every bill signed and approved as required by the constitution is presumed to have been properly passed. And, as held in State v. Peterson, 38 Minn. 143, (36 N. W. 443,) the absence from the journal of either house of an entry showing that a particular thing was done, is no evidence that it was not done, unless the constitution requires the entry to be made; and there is no such requirement in respect to the reading of a bill on three different days, or its passage under a suspension of the rule. The objection, therefore, is not well taken.

Ellis executed two wills, — one in 1890, which he destroyed, with intent to revoke, in July, 1891, when he executed another. He destroyed that will, apparently with intent to revoke it, December 31, 1891. The appellants offered evidence tending to prove that at that date he had not sufficient mental capacity to make or revoke a will. On the respondent's objection this evidence was excluded, on the ground, as we understand, that it was immaterial, because there was not sufficient evidence of the will.

It must be apparent that, in order to defeat an application for the appointment of an administrator, proof of a will, not forthcoming, must be such as to show that it can be established. Proof that one was executed will not suffice without proof to a reasonable certainty of its contents. To establish a will without such proof would be to make a will for the party.

The evidence afforded no means of determining with any degree of certainty what disposition the will of July, 1891, made of the testator's property. The most that could be made of it was that it left to Flora Ellis one-third of the property, and something more, but how much or what more did not appear; that there were specific devises or legacies to others, but to whom, except one, or how much to any one of them, did not appear; and that there was a residuary devisee or legatee, but who, did not appear; and there were no means of determining how much would be the residue.

Of course, a will, not produced, could not be established on any such evidence, and evidence that the testator had not capacity to revoke it would be immaterial.

That leaves only the question which of the two, Flora or Rachel, was the widow of Matthew Ellis? That depends on the validity of the judgment divorcing Rachel and Matthew.

It is objected that the judgment was not sufficiently proved, because — First, the authentication was not in conformity with the act of congress; second, the copy authenticated is a copy of the judgment roll, and it does not appear the judgment was ever entered in the judgment book.

When the proceedings of a court of another state are authenticated as provided by act of congress, they must be received as evidence; but it is competent for the legislature of each state to provide that proof of such proceedings may be received in the courts of such state by authentication less than is prescribed by act of congress, and the authentication in this case was in accordance with the statute of the state.

We will assume that the laws of Wisconsin are the same as our own in respect to entering judgments and making up the judgment rolls. The roll, or an authenticated copy of it, is evidence of all that is properly contained in it, including the judgment, and is evidence, prima facie at any rate, that the judgment was properly rendered and entered, so as to have effect.

It is objected to the judgment that by the laws of Wisconsin ...