Thornton v. Baker

• Decision Date: 09 July 1887
• Citation: 10 A. 617,15 R.I. 553
• Parties: THORNTON v. BAKER.
• Court: Rhode Island Supreme Court

10 A. 617

15 R.I. 553

THORNTON

v. BAKER.

Supreme Court of Rhode Island.

July 9, 1887.

Appeal from court of probate, town of Warwick.

On appellant's motion to dismiss the appellee's petition to the probate court.

Dexter B. Potter, for appellant. John J. Arnold, for appellee.

DURFEE, C. J. Joseph Baker died November 17, 1884, leaving a written instrument dated March 27, 1883, purporting to be his will. Shortly after his death Mary Baker, his widow, who was named as executrix in said instrument, offered it for probate in the probate court of Coventry, alleging in her petition for probate that said Joseph, "at the time of his death, was a resident of said Coventry." After hearing, the court entered a decree refusing to admit said instrument to probate, from which decree said Mary took an appeal to this court. This court, after hearing, affirmed the decree of the probate court of Coventry, and likewise expressly adjudged said instrument not to be the will of said Joseph. The decree of this court was entered October 7, 1885. In July, 1886, Mary Baker petitioned the court of probate of Warwick for the probate of said instrument as the will of said Joseph, alleging in her petition that said Joseph, at the time of his death, was a resident of said Warwick. The appellant, Thornton, being present at the Warwick court, brought the decrees of the court of probate of Coventry and of this court to the attention of the Warwick court; but the latter court nevertheless took jurisdiction, and, after hearing, entered a decree, in which it adjudged and decreed that said Joseph, "at the time of his decease, was an inhabitant and resident of said Warwick," and that said instrument was his last will and testament, and that as such it be approved, allowed, and ordered to be recorded. From this decree said Thornton took an appeal to this court, assigning for reasons of appeal, among others, that said instrument, and all matters connected with the probate thereof, are res adjudicata, and that said Mary is estopped by her previous action in the court of probate of Coventry, and in this court, from prosecuting her present petition. The case is before us now upon his motion, based upon said reasons, that her petition be dismissed.

Mary Baker, the appellee, resists the motion, and contends that it cannot be granted consistently with our decision in Bank v. Wilcox, Index, X, 88, 3 Atl. Rep. 211. In that case Holder N. Wilcox applied to the court of probate of Tiverton for administration on the estate of his niece Mary A. Wilcox, describing her as "late of Tiverton, deceased." He was appointed administrator without hearing, no one opposing. Subsequently one George A. Sayer applied to the probate court of Providence for appointment as administrator, alleging that Mary A. Wilcox was a resident of that city when she died, and was appointed. Admittedly she did in fact reside in Providence when she died. The court held the second appointment good, and the first void, because the court of probate of Tiverton had no jurisdiction. The second applicant could not be held to be estopped by the allegation of jurisdictional facts in the first application, because he had nothing to do with making it. The case at bar is different. In the case at bar the two applications were both made by Mary Baker. In the first she alleged that the deceased was resident in Coventry when he died, and thus led the court of probate of Coventry to assume jurisdiction of her application, and try it on its merits. In the second she alleged that the deceased was resident in Warwick, and petitioned the court of Warwick to try the same question which she had previously submitted to the court of probate of Coventry, claiming that the decision of the latter court was void, because the deceased was not, as she had alleged in her application to the latter court, resident in Coventry when he died. So precedent is cited for such a proceeding, and it certainly seems as if a party ought not to be permitted twice to belie himself. And see the following cases cited by the appellant: Ela v. McConihe, 35 N. H. 279; Hines v. Mullins, 25 Ga. 696; Brown v. Haines, 12 Ohio, 1; Mandeville v. Mandeville, 35 Ga. 243; Harbin v. Bell, 54 Ala. 389.

"Consent of parties," say the supreme court of the United States in Hailviay Co. v. Ramsey, 22 Wall. 322, 327, "cannot give the courts of the United States jurisdiction, but parties may admit the existence of facts which show jurisdiction, and the courts may act judicially upon such admission." After a court has acted judicially on such an admission or declaration, it seems as if the party making it should be debarred from denying it for the purpose of attacking the judgment dependent thereon. Turner v. Billagram, 2 Cal. 520; Miltimore v. Miltimore, 40 Pa. St. 151; Potter v. Adams'Ex'rs, 24 Mo. 159; Lovelady v. Davis, 33 Miss. 577.

We do not find it necessary, however, to determine this point in order to decide this case. As we have seen, Mary Baker took an appeal from the probate court of Coventry to this court, and here prosecuted her petition to final judgment, wherein the decree of said probate court was affirmed, and the instrument offered for probate was adjudged not to be the will of Joseph Baker. It is true the decree of this court does not expressly adjudge that Joseph Baker was resident in Coventry at his death, but, where jurisdiction depends on the finding of a particular alleged fact, the exercise of jurisdiction implies the finding of that fact. Erwin v. Dowry, 7 How. 172; Wyatt's Adm'r v. Steele, 26 Ala. 639.

The decree, then, which we are asked to disregard, is a decree, not simply of the court of probate of Coventry, but also of this court, the court of last resort, the supreme court of the state. The statute (Pub....