Knight v. Rollings

• Decision Date: 06 February 1906
• Citation: 73 N.H. 495,63 A. 38
• Parties: KNIGHT et al. v. ROLLINGS et al.
• Court: New Hampshire Supreme Court

63 A. 38

73 N.H. 495

KNIGHT et al.

v. ROLLINGS et al.

Supreme Court of New Hampshire. Belknap.

Feb. 6, 1906.

Transferred from Superior Court; Chamberlin, Judge.

Action by Edwin A. Knight and another against Julia A. Hollings and another. From a decree dismissing the plaintiffs' petition, they appeal. Affirmed.

The testator was born in Tilton in 1841, and resided there until after the close of the Civil War, when he removed to Denver, Colo., where his legal residence was thenceforth until March, 1888. He became ill in the early part of 1888, and in March came to the home of his brother, James H. Tilton, in Laconia, with the latter and a cousin, upon their return from a visit to him. He brought here much of his personal estate. Soon afterward his furnishings of the apartments in a clubhouse, occupied by him for several years as a home, were taken to his brother's house, and the apartments were vacated. After remaining at his brother's house several weeks, he went to a sanitarium in Massachusetts for treatment, and remained there until his death, May 19, 1891. Upon due proceedings before the probate court of Belknap county he was decreed to be insane in May, 1888, and James was appointed guardian over him. James accepted the trust and acted as guardian until Albert's death. Albert made a will at Denver, October 9, 1884, describing himself therein as of that city. By it he gave, in effect, one-half of his property to his five nieces—the defendants and another niece, now deceased—and the other half to James, to hold in trust and pay the income to a brother, George, a sister, Mrs. Knight, and a niece, Mary Knight, or such of them as should be living at his decease, during their lives and the life of the survivor, and upon the death of the survivor to pay the principal in equal portions to such of the five nieces as should then be living. He nominated James as executor of the will. George and Mrs. Knight died before the testator. Mary, the plaintiffs, and one of the five nieces were children of Mrs. Knight. The plaintiffs are not mentioned in the will. The will was presented to the probate court of Belknap county by James, and was allowed in common form in June, 1891. In the petition for the allowance of the will Albert was described as late of Laconia, having estate in Belknap county. James was appointed executor, gave bond in that capacity, and returned an inventory of the estate as required by law. The estate consisted of real estate situated in Colorado, valued at $20,440, and personal property valued at $184,576.39. The personal property was all in Belknap county, taken there in part by Albert when he went there, and in part by James while acting as guardian. James acted as executor until his decease, March 15, 1894. He paid the five nieces $80,000 and set apart a like sum for the trust, as provided in the will. The executor of James' will settled a final account of the administration of Albert's estate with the probate court In November, 1894. Albert's will has been fully executed, excepting the sum of $80,000 that was in possession of the trustee upon the death of Mary Knight in September, 1903. More than $40,000 of the Income of this fund was expended in the maintenance of Mary in the family of one of the plaintiffs. The principal of the fund, $80,000, is in the possession of a trustee appointed after James' death. In September, 1891, James petitioned the county court of Denver, Colo., for the proof and allowance of Albert's will and for the issue of letters testamentary to himself. The petition was granted the same day, and he gave a bond as executor and returned an inventory of the real estate situated In Colorado, which was approved by the court. After James' death, an administrator de bonis non was appointed there, who completed the administration of the estate, and in October, 1898, settled a final account thereof with the court after due notice, and was discharged from the trust. In all these proceedings Albert was described as a resident of Belknap county, N. H. Shortly there afterward the real estate was sold and the proceeds were divided according to the provisions of the will.

The plaintiffs are heirs at law of Albert. They were more than 21 years of age at the time of his death, were then or since under no legal disability, and were then and ever since have been residents of Massachusetts. In January, 1904, they filed with the probate court of Belknap county a petition to have the probate of Albert's will and all subsequent proceedings there under set aside and revoked, and the will turned over to the proper court in Colorado, on the ground that the Belknap county court had no primary jurisdiction of such probate and subsequent proceedings, because Albert's legal residence and domicile at the time of his decease were in Denver. The petition was dismissed, and this appeal is from the decree of dismissal. The plaintiffs offer to prove that Albert's home and legal residence, from the time of his removal to Denver to the time of his decease, were there; that in the early part of 1888, and for a long time prior thereto, he was insane; that he was removed to New England by his brother and cousin on account of his insanity and for treatment; that at no time after his removal did he possess mental capacity sufficient to make an election of Laconia as his residence; that he had no property in New Hampshire when he left Denver; that his brother and cousin brought a portion of his property along when he came, for the purpose of protecting it, on account of his mental condition and removal here for treatment; and that the plaintiffs received no notice and had no knowledge of the guardianship proceedings or of the proceedings relative to the probate of the will. If these facts are material, they are to be found at a hearing in the superior court. The probate laws of Colorado are a part of the case. The defendants moved to dismiss the appeal; and the questions of law arising upon the foregoing facts and motion were transferred from the November term, 1904, of the superior court.

Jewett & Plummer, for plaintiffs. Mitchell & Foster, for defendants.

CHASE, J. Judges of probate have exclusive original jurisdiction of the probate of wills and the settlement and distribution of the estates of deceased persons. Const, art. 79; Pub. St. 1901, c. 182, § 2. Although their courts have no jury, and the proceedings are not according to the course of the common law, "they are to be regarded as courts of general jurisdiction on the subjects to which they relate, and are entitled to all the presumptions in favor of their proceedings which are allowed in the case of other tribunals of general jurisdiction, more especially as they are now made by statute courts of record." Stearns v. Wright, 51 N. H. 600, GOO; Kimball v. Fisk, 39 N. H. 110, 119, 120, 75 Am. Dec. 213; Pub. St. 1901, c. 182, § 1. As to the particular judge of probate who shall have jurisdiction of the probate of a will in a given case, it is provided that it shall be the judge for the county in which the deceased person "was last an inhabitant; but, if such person were not an inhabitant of this state," it shall be "the judge for any county in which such person had estate." Pub. St. 1901, c. 182, § 8.

Albert K. Tilton's will was presented to the judge of probate for Belknap county, accompanied by a petition signed by the executor nominated therein, praying for its probate and alleging, in substance, that Tilton was last an inhabitant of that county and had estate in the county at the time of his death. These allegations showed that the judge had jurisdiction of the probate of the will, both by reason of Tilton's residence and his having estate in the county at the time of his death. The judge could not decline or neglect to act upon the petition without violating the duty imposed upon him by law and disregarding his official oath. In acting upon the petition it is obvious that he had authority to determine, and must determine, the jurisdictional questions of facts above mentioned. They laid at the very threshold of the procedure. As his court was one of general jurisdiction in respect to the probate of wills, and as he assumed jurisdiction of this particular will and proceeded to approve and allow it in common form, it must be presumed that he found Tilton was last an inhabitant of the county, or that he had estate in the county at the time of his decease, or that both these facts existed. As the will was proved in common form, it must also be presumed that there was no contest before the court as to its probate. Pub. St. 1901, c. 187, § 6; Huntress v. Effingham, 17 N. H. 584; State v. Rye, 35 N. H. 386; Ela's Appeal, 68 N. H. 35, 38 Atl. 501; Wilson v. Otis, 71 N. H. 483, 53 Atl. 439, 93 Am. St Rep. 564; McFeely v. Scott, 128 Mass. 16, 17; Stanley v. Safe Deposit Co., 87 Md. 450, 40 Atl. 53; Corrigan v. Jones, 14 Colo. 311, 23 Pac. 913; Vanfleet Col. At, § 60 et seq., 637.

According to the facts appearing in the record, including those which the plaintiffs offer to prove, Tilton's personal property—nearly 9/10 of his entire estate—was in Belknap county at the time of his decease, having been previously taken there by himself and his guardian for preservation and protection. The plaintiffs do not question this fact, nor allege that there was any wrong done or attempted in the removal of the property to that county. On the other hand, they offer to prove that it was done to protect the property from loss, in view of Tilton's mental condition—certainly a prudent thing to be done under the circumstances. The situs of the property there, in and of itself, gave the judge of probate of the county jurisdiction of the probate of the will, even if Tilton's domicile was in Denver. To that extent the jurisdiction of the probate court affirmatively appears and docs not depend upon presumption. Neither the statute nor the common law required that the will should...