In re Horton's Will

• Citation: 111 N.E. 1066,217 N.Y. 363
• Parties: In re HORTON'S WILL.
• Decision Date: 07 March 1916
• Court: New York Court of Appeals

217 N.Y. 363

111 N.E. 1066

In re HORTON'S WILL.

Court of Appeals of New York.

March 7, 1916.

Appeal from Supreme Court, Appellate Division, Second Department.

In the matter of proving the last will and testament of George W. Horton. From an order unanimously affirming a decree (169 App. Div. 292, 154 N. Y. Supp. 827) admitting the will to probate, Alice M. Horton appeals. Reversed, and remanded for rehearing.

William H. Sohmer, for appellant.

Henry G. K. Heath, of New York City, for respondent.

HISCOCK, J.

George W. Horton, the testator, died at Chardon, in the state of Ohio, on September 14, 1913. He left an instrument dated April 5, 1902, executed according to the laws of this state as a will, in which he disposed of his entire estate and appointed his daughter, Jane Ann ‘Dickie, the executrix thereof. In this instrument he described himself as a resident of City Island in this state. After Horton's death this instrument was offered for probate in the Surrogate's Court of Westchester county in this state, where he had left assets, by the executrix thereof as his last will and testament. Such probate was contested by the appellant, Alice M. Horton, from whose answer and objections it appeared that she was married to the said Horton in September, 1912, and that on August 8, 1913, he executed, at Painesville, Ohio, another instrument, purporting to be his last will and testament, whereby he revoked all former wills, gave all his estate to the contestant, and made her his sole executrix; also that on September 22, 1913, this instrument was admitted to probate as his last will and testament by the probate court of Lake county, Ohio. In support of the allegations of her answer and in order to prove that the instrument of 1902 was not the last will and testament of the said testator, the contestant offered in evidence a duly authenticated copy of the instrument of 1913, and of the proceedings admitting it to probate in Ohio. These were objected to and excluded by the surrogate upon the grounds hereafter to be considered and which did not include any objections to the form of the evidence.

In connection with the offer of this evidence it also appeared without dispute that under the statutes of the state of Ohio governing the admission of wills to probate and the decisions construing the same, notice of a proceeding for probate is not required to be served on any of the parties interested except such as are residents in that state; that no contest is permitted on behalf of those interested in resisting the original probate (General Code of Ohio, §§ 10507, 10516; Matter of Hathaway, 4 Ohio St. 383;Matter of Jones, 2 Ohio N. P. 194;Barr v. Closterman, 3 Ohio Cir. Ct. R. 441; affirmed, 27 Bull, 392); that the order admitting the will is prima facie evidence only of its validity (Wadsworth v. Purdy, 12 Ohio Cir. Ct. [N. S.] 8), but if within two years no one appears and contests its validity the probate will be forever binding, except as to infants and others under disability. Gen. Code, § 10531. It also fully appeared that in accordance with such statutes no notice of said probate proceedings in Ohio was given to the respondent, testator's daughter, and an infant granddaughter, both of whom resided in this state and who were his only heirs at law and next of kin.

In this condition of the proofs the surrogate rejected evidence of the probate proceedings in Ohio, including the copy of the purported will involved therein, on the apparent ground that, inasmuch as no notice had been given to the next of kin of the testator in this state, said proceedings were without jurisdiction and void as to them and proved nothing. The view of lack of jurisdiction, but on a somewhat different ground, has been sustained by the Appellate Division, and the question of its correctness is the only one presented on this appeal.

[1][2] The probate court of Ohio was a court of limited jurisdiction, and unless it appears that it had jurisdiction to admit said will to probate, its proceedings are void as claimed, and derive no benefit from the “full faith and credit” provision of the Constitution. Const. U. S. art. 4, § 1. Assuming at this point of the discussion that the testator was such a resident of Ohio at the time of his death as to furnish the probate court of that state with that element of jurisdiction, the question is presented whether a proceeding to probate a will is one which requires service of process upon all parties interested, even though nonresidents, or is one in the nature of a proceeding in rem where such service may be dispensed with. We regard it as well established that the latter is the case, and that if the probate court otherwise has jurisdiction, it may make a decree admitting a will to probate which is binding upon nonresidents, even though notice has been dispensed with on the original probate and such probate becomes conclusive in the absence of contest within a given period as provided by the laws of Ohio now before us. Vanderpoel v. Van Valkenburgh, 6 N. Y. 190, 198;Matter of Law, 56 App. Div. 454, 458, 67 N. Y. Supp. 857;Matter of Goldsticker, 192 N. Y. 35, 39, 84 N. E. 581, 18 L. R. A. (N. S.) 99, 15 Ann. Cas. 66;Woodruff v. Taylor, 20 Vt. 65, 73;Crippen v. Dexter, 13 Gray (Mass.) 330;Bonnemort v. Gill, 167 Mass. 338, 340, 45 N. E. 768;Robertson v. Pickrell, 109 U. S. 608, 3 Sup. Ct. 407, 27 L. Ed. 1049;Overby v. Gordon, 177 U. S. 214, 20 Sup. Ct. 603, 44 L. Ed. 741;Tilt v. Kelsey, 207 U. S. 43, 28 Sup. Ct. 1, 52 L. Ed. 95;Christianson v. King County, 239 U. S. 356, 36 Sup. Ct. 114, 60 L. Ed. ---.

The law upon this general subject is well stated in Woodruff v. Taylor, 20 Vt. 65, 73, where the court, after describing the procedure necessary in order to obtain jurisdiction in personam, says:

“A judgment in rem is founded on a proceeding instituted, not against the person as such, but against or upon the thing or subject-matter itself, whose state, or condition, is to be determined. It is a proceeding to determine the state, or condition, of the thing itself; and the judgment is a solemn declaration upon the status of the thing, and it ipso facto renders it what it declares it to be. The probate of a will I conceive to be a familiar instance of a proceeding in rem in this state. The proceeding is, in form and substance, upon the will itself. No process is issued against any one; but all persons interested in determining the state, or condition, of the instrument are constructively notified, by a newspaper publication, to appear and contest the probate; and the judgment is, not that this or that person shall pay a sum of money, or do any particular act, but that the instrument is, or is not, the will of the testator. It determines the status of the subject-matter of the proceeding. The judgment is upon the thing itself; and when the proper steps required by law are taken, the judgment is conclusive, and makes the instrument, as to all the world (at least so far as the property of the testator within this state is concerned) just what the judgment declares it to be.”

Again in Crippen v. Dexter, 13 Gray (Mass.) 330, a will probated in Connecticut was offered for probate in Massachusetts, and a son of the testator objected to evidence of the decree allowing the Connecticut probate on the ground, among others, that he had not had notice of the Connecticut proceedings. In overruling the objection, Chief Justice Shaw said:

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