McEwen v. McEwen

• Decision Date: 01 March 1924
• Citation: 197 N.W. 862,50 N.D. 662
• Parties: McEWEN v. McEWEN.
• Court: North Dakota Supreme Court

50 N.D. 662

197 N.W. 862

McEWEN

v.McEWEN.

Supreme Court of North Dakota.

March 1, 1924.

Syllabus by the Court.

A testator's domicile at the time of death determines the jurisdiction for primary original probate of his will.

Section 8672, C. L. 1913, providing that a will duly allowed and proved elsewhere than in North Dakota may be allowed and recorded in any county in which the testator left any estate, applies only in the case of a foreign will.

The record of a proceeding admitting a will to probate in a court of a foreign country, properly authenticated, prima facie establishes the jurisdiction of such foreign court; that is to say, it is sufficient unless attacked.

Where, in a foreign probate proceeding, jurisdiction is dependent upon proof of domicile, proof of domicile of origin elsewhere is sufficient to overcome the prima facie effect of the authenticated record.

Where, in a foreign probate proceeding, jurisdiction is dependent upon proof of domicile, and that jurisdiction is challenged by one not a party to such proceeding, the authenticated record of the foreign court has no probative force to establish domicile.

Domicile being established in a place, it is presumed to have continued there until the contrary is affirmatively shown, and the burden of proof is upon him who asserts the change.

“Residence” and “domicile” are not synonymous. To effect a change of domicile there must be actual residence in the new place and an accompanying intent to make it the real, true, fixed home. Very satisfactory evidence is required, to prove an intention to abandon or change an established domicile, especially where the change is to a foreign land.

While recitals in a will as to the residence of the testator and of the executors designated therein are relevant and may be of probative value in determining the domicile of the testator, yet the weight and value of such recitals should and do depend upon the circumstances shown.

Appeal from District Court, Walsh County; John C. Lowe, Special Judge.

Action by Lorne P. McEwen against Daniel McEwen. From a judgment for plaintiff, defendant appeals. Affirmed.Gray & Myers, of Grafton, for appellant.

H. C. De Puy, of Grafton, for respondent.

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, N. D., 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, N. D., 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 14, 1919.

On March 25, 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 verified by him, he recited that Mary C. Hunter died in Ontario, Canada, not being a resident of North Dakota at the time of her death, and further recited that her sole heir at law was her husband, Alexander Hunter, whose residence and post office address was Perth, Lanark county, Ontario. Service of notice of these proceedings in the Walsh county court was duly had, and in due time the appellant, Daniel McEwen, appeared to resist the probate of the North Dakota will, and filed an answer and cross-petition with an authenticated copy of an alleged will of Mrs. Hunter made in Canada on October 10, 1919, and the record of the probate thereof in Canada attached, praying that the probate of the North Dakota will be denied and that the Canadian will be admitted to ancillary probate by the court. In his answer and cross-petition the appellant admitted the death of Mary C. Hunter, then being a resident of Ontario, on October 14, 1919; that she left real property in Walsh county, N. D.; and that her sole heir at the time of her decease was her husband, Alexander Hunter, whose address was Perth, Ontario; but denied that the North Dakota will was her last will. He alleged that Alexander Hunter died in Canada on March 21, 1920, without issue; that he left a will whereby he devised the Walsh county land and wherein he nominated the appellant, Daniel McEwen, a resident of Lanark county, Ontario, as an executor; that the other executor nominated by Alexander Hunter was a resident of Walsh county, N. D.; that on the 10th day of October, 1919, Mrs. Hunter made, published, and declared a last will and testament in conformity with the laws of her domicile, to wit, Ontario, where she had continuously resided for a number of years prior thereto; that in such will she nominated her brother, Daniel McEwen, the appellant, and one Martin, both of Lanark county, Ontario, as her executors; that thereafter and on the 20th day of March, 1920, such will was duly admitted to probate by the surrogate court of the county of Lanark, Province of Ontario, as shown by the authenticated copy of such will and the probate thereof attached to the cross-petition. To this cross-petition the respondent filed an answer and objection. He realleged the matters and things set out in his petition as to the North Dakota will; alleged that while Mary C. Hunter died in Canada, she was a citizen of North Dakota and was not domiciled in Ontario; denied that the Canadian will was the will of Mrs. Hunter, and that it was ever duly proved in Canada or elsewhere; admitted that Alexander Hunter was dead; denied that the probate of the will was effective to establish the will in North Dakota in so far as to affect real property in North Dakota, or to grant ancillary probate thereof in North Dakota. He alleged that at the time of the making of such will, Mrs. Hunter was not of sound mind or memory or competent to make a will; that such will was not freely and voluntarily made, and that it was procured by fraud, duress, and undue influence, and that such will was not duly or sufficiently proved in the surrogate court of Lanark county, Ontario.

Thereafter a hearing was had on the issues as made by these pleadings. At such hearing the proponent of the North Dakota will adduced evidence tending to show that at the time such will was made Mary C. Hunter was 75 years of age; that she was then of sound mind; that she resided on the land devised in Walsh county; that she had been a resident there with her husband for many years; that she had perfected title to a government homestead in Walsh county; that such will was duly executed and published and given by Mrs. Hunter to her brother, Peter McEwen, the father of the respondent herein, for safe-keeping; that Mrs. Hunter continued to reside in Walsh county for some 10 years thereafter; that in the fall of 1918, when she was 85 years of age, Mrs. Hunter and her husband, Alexander Hunter, went to Canada, the old McEwen home; that she was then infirm in mind and in body; that she went for temporary purposes; that when she departed for Canada, she left her household belongings in her home and stated that she wanted them when she returned; that the Hunters established no home in Canada; that Mrs. Hunter was too feeble to maintain a home there; that shortly before her death she was feeble-minded and was subject to hallucinations. The record as made by the respondent is wholly silent as to Alexander Hunter, excepting only that it appears therefrom that he accompanied Mrs. Hunter to Canada. The respondent offered to prove that Mrs. Hunter was not at the time of the making of the Canadian will of sound mind or memory or competent to make a will; that said writing was not freely given or made or executed by her as her last will and testament; that the subscription and publication thereof were secured by fraud and undue influence; and that she was so impaired in mind and body that she was incapable of exercising her own will, and that she was induced against her will and judgment and contrary to her wishes to subscribe to said purported will. To this offer the appellant objected on the ground that the decree of the surrogate court of the county of Lanark, Province of Ontario, admitting the will to probate as shown by the authenticated proceedings of that court offered in evidence, under the statute as to the probate of foreign wills, foreclosed any question as to the matters offered to be established. This objection was sustained by the court. On the other hand, the court received in evidence the answer and cross-petition of the appellant together with the authenticated copy of the proceedings of the Canadian court over the objection of the respondent that they were inadmissible on all the grounds set out in his answer and objection to the cross-petition. The probate by the surrogate court of Ontario, as shown by the authenticated record, was in short or common form; i. e., upon proceedings to which the executors alone were parties. See 28 R. C. L. p. 367. The Canadian will complied with all the requirements of the laws of Ontario, and the rules of the surrogate court as to form, signature, and attestation.

It was further stipulated that the respondent, Lorne P. McEwen, was a resident and citizen of the county of Walsh, N. D., and was not a party to the proceedings in the surrogate court of the county of Lanark, Ontario, or in any manner cited to appear therein, and had no knowledge of the pendency of said proceedings until after the order admitting the will to probate had been entered.

On the record as made, the court thereupon made findings, among others, a finding that Mary C. Hunter was at the time of the execution of the Canadian will and at the time of her death a resident of Lanark county, Ontaria, Canada, and entered an order denying probate of the North Dakota will and admitting the...