In the Matter of the Estate of George H. Holden

• Decision Date: 07 October 1938
• Citation: 1 A.2d 721,110 Vt. 60
• Parties: IN THE MATTER OF THE ESTATE OF GEORGE H. HOLDEN
• Court: Vermont Supreme Court

1 A.2d 721

110 Vt. 60

IN THE MATTER OF THE ESTATE OF GEORGE H. HOLDEN

Supreme Court of Vermont

October 7, 1938

May Term, 1938.

1. Necessity of Submitting Will to Forum at Testator's Domicile---2. Essentials of Jurisdiction of Probate Court over Decedent's Estate---3. P. L. 2725, Jurisdiction Not Affected by Nonresidence of Decedent---4. Right to Probate Will of Nonresident Though Not Presented in State of Domicile---5. Extent of Power of State with Respect to Administration of Estates---6. Circumstances in Which Action on Estate of Nonresident Postponed---7. Admission to Probate of Purported Will of Florida Resident Held Justified---8. Judicial Notice of Florida Statute---9. Jurisdiction Where Purported Will Presented for Probate against Objection of One of Persons Named Executors.

1. Generally speaking, a will should be submitted in first instance to forum at domicile of testator, but this is not always necessary.

2. Jurisdiction of a probate court over estate of deceased person depends upon existence and judicial ascertainment of two facts: the death of such person and his domicile, or assets within the district.

3. In view of provisions of P. L. 2725 that if person resided out of State at time of his death, his will shall be allowed and recorded, and letters testamentary or of administration shall be granted in probate court of any district in which he had estate, fact that decedent was nonresident would not affect jurisdiction of probate court provided such jurisdiction were otherwise established.

4. Appropriate court of jurisdiction in which assets of estate of nonresident testator are found may grant probate upon his will, even though will has not been presented for probate in state of domicile, such jurisdiction being inherent and existing independently of statute, which is regarded as merely declaratory of common law.

5. Every state has plenary power with respect to administration and disposition of estates of deceased persons as to all property of such persons found within its jurisdiction.

6. Court in state other than that of decedent's domicile will in its discretion ordinarily postpone action insofar as will concerns movables until court at domicile has acted, if proceedings in domicile for probate are pending at time application for probate is made in the other state.

7. Where estate of decedent domiciled in Florida at time of his death consisted in part in stocks in Vermont corporations mortgage on Vermont real estate and deposits in banks located in Vermont, and where no proceedings were pending in Florida under provisions of P. L. 2725 relating to nonresident decedents, admission to probate in Vermont probate court for district in which real estate and banks were located of instrument pur- porting to be decedent's last will and testament was justified, since such court had jurisdiction, as against claim of widow and one of two persons named as executors that appropriate court of Florida had primary jurisdiction and that orderly procedure required instrument to be submitted there in first instance.

8. Under No. 43, Acts of 1937, Supreme Court could take judicial notice of provisions of Florida statute.

9. Probate court was not without jurisdiction to entertain proceedings for probate of purported will because it was presented by one of two persons named therein as executors against objection and protest of the other, since such persons were not then executors and rule that executors must act jointly in matters requiring judgment was not applicable.

APPEAL IN PROBATE. From an order of the probate court for the District of Chittenden, Francis D. Foley, Probate Judge admitting to probate a purported will of a decedent domiciled in Florida at the time of his death the decedent's widow and one of the persons named as executors in the instrument appealed direct to the Supreme Court, Chittenden County. The opinion states the case.

Decree affirmed. To be certified to the probate court for the district of Chittenden.

J. H. Macomber and J. H. Macomber, Jr., for the appellants.

A. Pearley Feen and Louis Lisman for the appellee.

Present: MOULTON, SHERBURNE, BUTTLES and STURTEVANT, JJ., and JEFFORDS, Supr. J.

OPINION

MOULTON

George H. Holden, a legal resident of, and domiciled in, the State of Florida, died testate on June 17, 1937, in that State. His estate consists entirely of stocks, bonds, mortgages, notes and bank deposits. For several years previous to his demise all of this property was in the custody and charge of his son, George J. Holden, of Burlington Vermont. Among the bonds are those of foreign governments, and of municipalities and corporations organized and having principal offices in States other than Vermont or Florida. The stocks are in part those of corporations so organized, and in part of Vermont corporations. Of the mortgages one is upon real estate in Vermont, the other upon real estate in Florida. The notes are the obligations of a Florida corporation, secured by stock in that company. The deposits are in banks, situated in Burlington. George J. Holden kept the securities in safe deposit in Burlington, collected the income, forwarded to the testator such part thereof as was sufficient for the latter's needs, and kept the balance on deposit. He also had custody of the will, which appears to have been executed according to the laws of Vermont and of Florida, and concerning which execution no question is made.

The beneficiaries of the estate are the widow, Harriet C. Holden, of Orlando, Florida; George J. Holden and the two children of the latter, of Burlington, Vermont. The executors named in the will are George J. Holden and Dewitt C. Miller, of Orlando, Florida.

After the death of the testator, George J. Holden, over the protest and objection of Dewitt C. Miller, presented the will for probate to the probate court for the district of Chittenden. Miller and Mrs. Holden moved to dismiss the petition for probate upon the ground that, since the testator was a resident of, and domiciled in, Florida, the appropriate court of that State is the tribunal having primary jurisdiction, and proper and orderly procedure requires the instrument to be submitted there in the first instance; and that, although the items composing the estate are physically present in Vermont, the probate court here has only ancillary jurisdiction, which is confined to the stocks of Vermont corporations, the mortgage upon Vermont real estate, and the money on deposit in Vermont banks.

Upon hearing, the motion to dismiss was denied, and the instrument admitted to probate. The cause comes here upon the appeal of Dewitt C. Miller and Mrs. Holden. No proceedings have been commenced in Florida.

Generally speaking, a will should be submitted in the first instance to the forum at the domicile of the testator. Hyman v. Gaskins, 5 Ired. Law 267, 27 N.C. 267, 270; Payne v. Payne, 239 Ky. 99, 39 S.W.2d 205, 208; In re Will of Eaton, 186 Wis. 124, 134, 202 N.W. 309; In re Fischer's Will, 119 N.J.Eq. 217, 181 A. 875, 877; Rackemann v. Taylor, 204 Mass. 394, 90 N.E. 552, 556. Yet this course is not always necessary. The jurisdiction of a probate court over the estate of a deceased person depends upon the existence and judicial ascertainment of two facts: the death of such person and his domicile, or assets within the district. Berry, Admr v. Rutland R. R. Co., 103 Vt. 388, 390, 154 A. 671. That this principle is not affected by the nonresidence of the decedent appears from P. L. 2725, which provides that, "If a person resided out of the state at the time of his death, his will shall be allowed and recorded, and letters testamentary or of administration shall be granted in the probate court of any district in which he had estate."

Statutes of this nature, varying in expression but alike in substance, have been enacted in other states, and in applying them it has been held that the appropriate court of a jurisdiction in which assets of the estate of a nonresident testator are found may grant probate upon his will, even though the will has not been presented for probate in the state of his domicile. Knight v. Hollings, 73 N.H. 495, 63 A. 38, 40; In re Gordon's Estate, 50 N.J.Eq. 397, 26 A. 268, 269; In re Fischer's Will, supra; Clayson v. Clayson, 26 Wash. 253, 66 P. 410; Rader v. Stubblefield, 43 Wash. 334, 86 P. 560, 564, 10 Ann. Cas. 20; Thomas Kay Woolen Mill Co. v. Sprague, (D. C.) 259 F. 338, 342; Hyman v. Gaskins, supra; Bolton v. Barnett, 131 Miss. 802, 95 So. 721, 724, 725; Jaques v. Horton, 76 Ala. 238, 242; and see...