McEwen v. McEwen

• Decision Date: 01 March 1924
• Docket Number: 5264
• Citation: 197 N.W. 862,50 N.D. 662
• Court: North Dakota Supreme Court

197 N.W. 862

50 N.D. 662

LORNE P. MCEWEN, Respondent, v. DANIEL MCEWEN, Appellant

No. 5264

Supreme Court of North Dakota

March 1, 1924

Appeal from the District Court of Walsh County, Lowe, Special J.

Affirmed.

Gray & Meyers, for appellant.

"The appeal from the justice to the district court was taken upon questions of law alone pursuant to § 8501, Revised Code 1905, and the procedure adopted by the trial court affirming the justice was strictly in accordance with said statute. After being defeated on every point raised by the appeal, the defendant was not thereafter entitled to another trial on the facts in that court. If he desired a new trial on the facts in the district court, he should have appealed under the provisions of the other sections relating to appeals generally." Hanson v. Gronley, 17 N.D. 191.

"Defendant saw fit to appeal to the district court solely on questions of law. By his appeal, he invoked the jurisdiction of the district court merely on questions of law and having been defeated in this he was not entitled to a trial on the merits." Whitmore v. Behm, 22 N.D. 280.

"The appeal from the justice of the peace to the district court being on questions of law alone, there was no question of fact for the court to consider, nor of the effect of the evidence, except to determine whether it was such that from it, the justice might have found facts that would justify the judgment." Croonquist v. Flatner, 43 N.W. 9.

"Declarations of residence in wills have always been received in evidence. The purpose of stating the residence of a testator in a will or of a party to a deed or other written instrument, is in part at least to identify the party by his residence from all others who may chance to have the same name. The statement of residence is therefore material to the act. It is a part of it. And so considered, we think, the act is relevant and probative." Holyoke v. Holyoke, 110 Me. 469, 87 A. 40.

"Declaration made in a deed or will on the subject of domicil at a time when there is no dispute about the matter is evidence of the highest character and establishes a domicil unless overcome by positive proof to the contrary." Miller v Miller, 34 Ohio C. C. 43.

"Following out the theory of an identity of person, the law fixes the domicil of the wife by that of her husband and denies to her during cohabitation the power of acquiring a domicil of her own separate and apart from him; and she cannot during such period of cohabitation effect a separate domicil by her intention that his domicil shall not be hers, even though assented to by him." 19 C. J. p. 414, § 33; 4 Enc Ev. p. 852, § E.

"The place where a person lives is taken to be his domicil until facts adduced establish the contrary and a domicil when acquired is presumed to continue until it is shown to have been changed and although the wife may be residing in another place, the domicil of the husband is her domicil. Even where a wife is living apart from her husband without sufficient cause his domicil is in law her domicil." Anderson v. Watts, 198 U.S. 694, 34 L.Ed. 1078, 11 S.Ct. 449.

"The place of residence where a person actually lives is, prima facie, presumed to be his legal domicil and the rule applies not only in interstate habitation but also where a citizen removes to a foreign country." 19 C. J. p. 431, § 66; 4 Enc. Ev. p. 848, P E.

"The place where a person lives is held to be his domicil until the contrary appears and this is made to appear when it is shown by positive or presumptive proof that at the time of the apparent change of domicil he had no intention of remaining for an unlimited time at the place to which he removed. " Dow v. Cult, 31 Cal. 629.

When the will was proved only in "common form," the court might at any time within a limited period after probate of its own motion or at the instance of the next of kin or other persons interested require the executor to prove the will in "solemn form." 16 Enc. Pl. & Pr. 993; 28 R. C. L. § 369.

When the governing statute or law does not require notice of the application to probate a will and none is given, the judgment or order approving the will is valid provided ample remedy by appeal or otherwise is given. 16 Enc. Pl. & Pr. p. 1003, P 5; Crippen v. Dexter, 13 Gray, 330; Frazer v. Wayne Circuit Judge, 39 Mich. 198; Otto v. Doty (Iowa) 15 N.W. 578; Martin v. Martin (Neb.) 97 N.W. 289; Bronbroussard v. Hebert (La.) 89 So. 14; Pat v. Holly (Ill.) 130 N.E. 793; Linthicum v. Linthicum (Md.) 99 A. 977; Ropar v. Ropar (W. Va.) 88 S.E. 834; Horton v. Dickie, 217 N.Y. 363, 111 N.E. 1066, Ann. Cas. 1918A, 611.

It is the rule well supported by authority that no formal judicial order or decree admitting a will to probate is necessary providing a judicial approval thereof can be gathered from the record as whole. 16 Enc. Pl. & Pr. p. 1045, § 22; 40 Cyc. p. 1843, P L., Re Warfield, 22 Cal. 51; Wilt v. Cutler, 38 Mich. 189; Holliday v. Code, 19 Pa. 490; Martin v. Martin (Neb.) 97 N.W. 289; Otta v. Doty (Iowa) 15 N.W. 578; Keister v. Keister (Ill.) 52 N.E. 946; Chandler v. Richardson (Kan.) 69 P. 168; Marshall v. Fisher, 46 N. C. (1 Jones, L.) 111.

"While the record made is meager in the extreme yet sufficient appears therefrom to show the will was not withheld from probate, but was, upon application made to the probate judge, the proper custodian under the law, shortly after the decease of the testator, produced, opened, and read in open court in the presence of one of the attesting witnesses, the devisees of the property and another; that the widow made her election to take under the will and a record of its admission to probate was entered upon the will. From these entries, while the same should have been made in a more formal way upon the record, of the court, yet it sufficiently appears that the court considered and determined the question of admitting the will to probate, and did admit the will to probate. The order so made is as binding and conclusive as though entered in a more formal manner. In our opinion, the real estate in controversy passed under the will, and did not descend to the heirs of the testator." Allen v. Allen, 28 Kan. 18.

H. C. DePuy, for respondent.

"Courts seems to be unanimous in holding that statutes providing for the allowance or recording of wills admitted to probate in another jurisdiction, upon the production of a duly authenticated copy, do not apply where the testator's domicil at the time of his death, was within the state. Two reasons are usually given for such decision; one being that these statutes are to be construed with reference to others on the same subject, requiring probate at the place of decedent's domicil; and the other, that such statutes are intended to apply only where the court of the other state or country has jurisdiction, which is not the case with reference to realty situated, or personalty belonging to one having a domicil, without the state where the will is offered for probate." Re Clark (Cal.) 1 L.R.A.(N.S.) 996.

"A court in all proceedings in rem determines the right of the party to the relief prayed for, but enters judgment only against the property within its jurisdiction, the judgment so rendered not serving as a basis for any proceeding in a foreign jurisdiction, and not being binding upon anything except the property and rights in the property against which it operates." Re Longshore, 176 N.W. 902 (Syl.) See also cases cited in note 1 L.R.A.(N.S.) 996.

"One is his legal residence as distinguished from his temporary place of abode; or to use the language of the charge, one is his home, as distinguished from the place or places to which business or pleasure may temporarily call him." 19 C. J. 395.

"Declarations made by a party whose domicil is in dispute, whether oral, in a deed, will, letter or other document, are to be considered in connection with the facts of the case." 19 C. J. 438.

"But in a will 'Prepared by an attorney where he inserts the place of residence as in part a matter of form such statement is not controlling.'" 19 C. J. 439 note.

"The term 'residence' in common parlance signifies a sojourning or present stay." 19 C. J. 439 note.

"Declarations are of no avail when they are conflicting, or indefinite, or when evidently made for the purpose of creating evidence in favor of the declarant." 19 C. J. 440 text.

"A domicil when once obtained or acquired is presumed to continue." 19 C. J. 431.

"Mere residence elsewhere will not rebut the presumption as to continuance, unless it is inconsistent with an intent to return to the original domicil." 19 C. J. 433.

"Where facts are conflicting the presumption is strongly in favor of an original as against an acquired domicil, and a domestic rather than a foreign domicil." 19 C. J. 433.

NUESSLE, J. BRONSON, Ch. J., and CHRISTIANSON, JOHNSON, and BIRDZELL, JJ., concur.

OPINION

NUESSLE, J.

In November, 1908, Mary C. Hunter made a will hereinafter referred to as the North Dakota will, devising a quarter section of land in Walsh county, North Dakota to her nephew, Lorne P. McEwen, the respondent herein. This devise was subject to a life estate in favor of her husband, Alexander Hunter. Subsequently and in 1918 Mrs. Hunter with her husband went to Canada, where she died in October, 1919. The North Dakota will recited that Mrs. Hunter was a resident of Walsh county, North Dakota, and a resident of North Dakota was nominated as executor therein. Mrs. Hunter was able to and did affix her signature to this will. Mrs. Hunter died on October 14th, 1919.

On March 25th, 1920, Lorne P. McEwen began proceedings in the county court of Walsh county for the probate of the North Dakota will under which he was the devisee. In his petition for probate, which was...