In re Hanrahan's Will

Decision Date05 October 1937
Docket NumberNo. 11611.,11611.
Citation194 A. 471
CourtVermont Supreme Court
PartiesIn re HANRAHAN'S WILL

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Exceptions from Rutland County Court; John S. Buttles, Judge.

Proceeding in the matter of Thomas Hanrahan's Will by Mary Hogan Hanrahan, proponent, and William H. Kershaw, special administrator, against James J. Hanrahan, contestant. Decree establishing the will, and contestant appeals.

Reversed and remanded.

Argued before POWERS, C. J., and SLACK, MOULTON, and SHERBURNE, JJ., and SHIELDS, Superior Judge.

James P. Leamy and Lawrence, Stafford & O'Brien, all of Rutland, for appellant. Fenton, Wing & Morse, Novak & Bloomer, and Jones & Jones, all of Rutland, for appellee.

POWERS, Chief Justice.

Thomas Hanrahan died at Rutland on July 17, 1931. He left a will, drawn by a Burlington attorney on May 14, 1931, and executed at Brattleboro a few days later, by which he gave all his property to the proponent, his widow. This will was filed in the probate court within and for the district of Rutland on July 20, 1931, and, upon due notice and hearing, was allowed. It was contested by James Hanrahan, a son and only heir of Thomas, who appealed from the decree of the probate court to the county court, wherein a jury trial resulted in a verdict establishing the will. The contest in the court below was predicated upon the following grounds: Lack of testamentary capacity; undue influence; lack of proper execution; and that the testator was not a resident of Rutland county, and therefore the probate court below was without jurisdiction. A special verdict was returned establishing the fact that Thomas Hanrahan was a resident of Rutland City on February 24, 1931, the date on which the temporary guardian hereinafter referred to was appointed in a Massachusetts probate court.

Thomas Hanrahan came to this country when he was about 11 years of age. He was capable, industrious, and thrifty, as is sufficiently indicated by the record. For more than 40 years, he worked for one concern in Pittsfield, Mass.; and in 1928, pursuant to its custom, this company retired him on a pension. Up to that time, at least, his domicile had been in Massacchusetts. Shortly before Christmas of that year, he came to Rutland and lived with the contestant at 12 Madison street. He remained there until June, 1929, when he went to Dalton, Mass., and stopped with relatives there. In August, he was taken ill at Dalton, and the contestant went to Massachusetts and brought him back to Rutland. He was then very ill; but his condition improved, and after several weeks he was up and around again. Thomas continued to live at 12 Madison street until the contestant took him back to Massachusetts as hereinafter stated. In January, 1930, the daughter of the contestant became seriously ill, and Mary Hogan, the proponent, a trained nurse, was employed to care for her. While on that engagement, she met Thomas Hanrahan, who was still a member of the contestant's family. Mary Hogan was about 41 years old, and Thomas Hanrahan was about 77. They became fast friends and on or about September 1, 1930, they became engaged to be married. Miss Hogan was out of the state during a part of the following winter, but was back in Rutland early in February, 1931. On the 12th day of that month, at Thomas' request, she took him in her car to Pittsfield, Mass., where he withdrew his securities from a bank deposit box and brought them to Rutland. They reached home about 9 o'clock in the evening of the same day, and, at Thomas' request, Miss Hogan kept the securities over night for him. The next day she made a list of them and then turned them over to him. She took him to the Marble Savings Bank in Rutland, where she left him with the securities in his possession, and did not see him again until February 20, 1931, when she met him at Dalton, Mass. Thomas went directly into the Marble Savings Bank, rented a safe deposit box, placed the securities therein, and the box was deposited in the vault.

The next morning, February 14th, having learned of his father's trip to Pittsfield, the contestant asked Thomas about the securities, and learned from the latter that they were in a deposit box at the bank. They then went together to the bank, checked over the securities, and found them intact. Later in that day, the contestant drove Thomas to Dalton, Mass., and left him with his (Thomas') sister, Margaret, who lived there. Thomas took no baggage with him on this trip, but the contestant carried in his grip a few things belonging to Thomas —shirts, collars, ties, shaving tools, and medicine.

About a week later, the contestant returned to Dalton, and as a result of what he learned from his Aunt Margaret, he promptly set out to prevent a marriage between his father and Miss Hogan. In this endeavor, he was assisted by several others, and so effective were they that it was impossible to secure the services of an available Catholic priest to perform the ceremony, and the contracting parties were compelled to resort to a civil officer, as will appear.

The contestant was in or about Dalton until the next day, the 21st, when he came back to Rutland; but he went back to Pittsfield that same night, and to Dalton the next day, Sunday. He was back in Rutland that night, and in Pittsfield the next day, which was Monday, February 23d. On the 24th, the contestant instituted proceedings in the probate court of Berkshire county, Mass., which resulted in the appointment by that court of a temporary guardian over Thomas and his property. No notice of any kind was served upon Thomas, and no evidence was introduced before the court. The petition filed by the contestant alleged that Thomas was insane, and that he was about to be married to Mary Hogan. It was supported by affidavits as required by the law of Massachusetts.

On the very day the temporary guardian was appointed, Miss Hogan went to Dalton where Thomas then was and met him. The next day, she brought him back to Rutland. When they reached the city, they went to the Marble Savings Bank, and then, for the first time, Thomas learned from an employee of the bank that a temporary guardian had been appointed over him as above stated. He also learned that the bank had surrendered all his securities to the temporary guardian, and that they had passed out of the state. This was made possible by the fact that the contestant had obtained the keys to the deposit box from Thomas when they were on the way to Dalton as above stated.

On the evening of the 25th, Miss Hogan and Thomas left Rutland for Troy, N. Y. They stayed over night with some of her relatives in Comstock, N. Y. The contestant had visited Whitehall, N. Y., earlier that day, and by one means or another had fixed it so these parties could not get a license to marry in that town, nor could they obtain a Catholic priest to perform the ceremony. The result was that they went to Dresden, N. Y., obtained a license, and were married by one Benjiah Ripley, justice of the peace. They returned at once to Rutland and lived together in that city until Thomas died, and lived there under circumstances strongly indicating that they intended to make Rutland their permanent home.

At the trial below, as it must be here, the question as to where Thomas was domiciled at the time the temporary guardian was appointed by the Massachusetts court was recognized as a vital one. The jury was instructed that, if his legal domicile was then in Vermont, the Massachusetts court was without jurisdiction and the appointment was to be treated as a nullity; and that, if his legal domicile was then in Massachusetts, the jurisdiction of that court was complete, and the appointment was to be treated as valid.

A question of domicile contains two elements. It involves residence and an intention. Blondin v. Brooks, 83 Vt. 472, 475, 476, 76 A. 184; Town of Georgia v. Waterville, 107 Vt. 347, 350, 178 A. 893, 99 A.L.R. 453. So here, while the question as a whole was one of fact, it was not to be determined by where Thomas was stopping at the time, alone, but by that fact together with his intention about remaining there. This latter fact may be proved by circumstantial evidence and usually in a case like this has to be so proved. There was evidence on behalf of the proponent fairly and reasonably tending to show that Thomas came to Rutland to reside, intending to make his home there, and that his trips to Massachusetts were visits merely. On the other hand, there was evidence so tending to show that he retained his domicile in Massachusetts, and that the times spent in Vermont were sojourns merely. It is idle for either. side of this controversy to insist that this question of domicile is so clearly determined by the record as to be ruled as a matter of law. Without attempting to recite the circumstances justifying our conclusion, we hold that, if the question of domicile was open at the time of the trial below, it was properly left to the jury to decide.

But the contestant insists that the adjudication of the probate court in Massachusetts closed the question of domicile, and estops the proponent from again raising it.

That jurisdiction of the person as well as of the subject-matter is necessary to the rendition of a valid judgment is too well established to be questioned. But it is argued that, unless the lack of jurisdiction is apparent from the record, the judgment cannot be attacked collaterally. If such a rule is ever applicable, it is certain that it is of no force when the question arises in any state other than the one in which the judgment was rendered. In this state, the question of the jurisdiction of the Massachusetts court to render the judgment relied upon by the contestant is open for consideration, notwithstanding the full-faith and credit clause of the Federal Constitution (article 4, § 1).

This has long been the law of this jurisdiction. It was first recognized as the...

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