Vogel v. New York Life Ins. Co.

• Citation: 55 F.2d 205
• Decision Date: 12 February 1932
• Docket Number: No. 6215.,6215.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Parties: VOGEL et al. v. NEW YORK LIFE INS. CO. et al.

55 F.2d 205 (1932)

VOGEL et al. v. NEW YORK LIFE INS. CO. et al.

No. 6215.

Circuit Court of Appeals, Fifth Circuit.

January 8, 1932.

Rehearing Denied February 12, 1932.

Glover C. Johnson, of Fort Worth, Tex., for appellants.

Wm. H. Clark, Jr., Eugene P. Locke, and Ralph Randolph, all of Dallas, Tex., and Louis W. McKernan, of New York City, for appellees.

Before BRYAN, FOSTER, and SIBLEY, Circuit Judges.

SIBLEY, Circuit Judge.

The New York Life Insurance Company brought its bill of interpleader under 28 USCA § 41 (26), in a District Court in Texas against Josephine E. Vogel, a citizen of Texas, as executrix of a will of Herman Specht probated in Texas, and against Theodore H. Thiesing, a citizen of New York, as agent, trustee and assignee of the executors of another will of Specht which had been set up in Hamburg, Germany, to determine which of them was entitled to the proceeds of two policies of insurance on the life of Specht, payable to Specht's executors, administrators, and assigns. The money was paid into court, the policies surrendered, and the insurance company discharged from the case. Thiesing in his answer asserted that he was the lawful assignee of the German executors, that Specht was domiciled at Hamburg at the time of his death, and that the policies, being personal property, passed to him under this domiciliary administration. Vogel contended in her answer that the policies were payable to her as executrix of the will probated in Texas, that there had been no such probate of the German will as was entitled to faith and credit here, and that the German will had been denied probate in Texas, making it res judicata that it was no valid will. After a trial, decree was given in favor of Thiesing, and Vogel as executrix appeals.

The material facts are that Specht was born in Germany, migrated while a young man to Texas, where he became a naturalized citizen of the United States, took out the insurance in dispute, and on June 1, 1912, made the will according to Texas law above referred to as the Texas will. Early in 1915 he returned to Germany and acquired a domicile in Hamburg. On June 7, 1915, he made a will there, expressly revoking the former will, and making another disposition of the proceeds of his insurance. This will was drawn up and sealed by two notaries in the presence of two other witnesses in accordance with German law, and filed in the probate court in Hamburg, in which, after his death on May 23, 1918, it was opened, recorded as his will, and letters testamentary were issued on June 3, 1918. These proceedings were regular according to German law. On June 15, 1919, Vogel applied for probate of a photostatic copy of the Texas will in the county where Specht had resided before going to Germany, and where at his death he owned both real and personal property, alleging the original will to be inaccessible because of the state of war between the United States and Germany. Probate was obtained March 3, 1919. As executrix, she has since possessed and administered the property in Texas without interference. On July 19, 1926, the German executors offered a certified copy of the German proceedings for an ancillary probate in Texas under article 3365 of Rev. Stats. of Texas of 1925. Vogel contested the probate on two grounds that more than four years had elapsed since the death of Specht; and that he was of unsound mind when the German will was executed. Probate was denied generally, without stating on which ground. Specht had the original policies of insurance in Germany, and Thiesing surrendered them into court. A certified copy of each will and the proceedings establishing it and granting letters testamentary was in evidence, and there was testimony that in Germany full faith and credit was given to probate proceedings had in the United States upon the wills of persons domiciled here. The assignments of error question no finding of fact, but raise three questions of law, to wit: Is the invalidity of the German will res judicata? Is the Texas probate controlling? Can the German probate be relied on here as a source of title?

The District Court found Thiesing to be "the lawful assignee of the domiciliary representative," and awarded him personally a decree for the entire amount of the policies. No assignment of error goes to this point, and we will not go behind the finding on it, but will treat him as the full successor in title to the German executors. As such privy in title since the judgment, is he then concluded by the Texas judgment refusing probate to the German will? If this were a second effort to probate that will in Texas, it would be held that the matter had been put at rest as res judicata, and that not only the issues actually raised and decided, but all that could and should have been, were concluded. But as will be shown, the present issue is not the provability of the will in Texas but its validity elsewhere, so that the question is rather one of estoppel by judgment; that is, whether the parties by having actually litigated a particular issue to a judgment on it are estopped again to litigate that issue in respect to another cause of action. Cromwell v. County of Sac, 94 U. S. 351, 24 L. Ed. 195. The burden of proving such an estoppel is on the party asserting it. If the record of the former litigation shows that the issue sought to be estopped was involved and might have been decided, but does not show that it was decided or must have been in order to reach the judgment rendered, the record alone is insufficient to establish the estoppel, and the doubt must be resolved by extrinsic evidence showing that issue to have been actually tried and decided. Russell v. Place, 94 U. S. 606, 24 L. Ed. 214; DeSollar v. Hanscome, 158 U. S. 216, 15 S. Ct. 816, 39 L. Ed. 956; Draper v. Medlock, 122 Ga. 234, 50 S. E. 113, 69 L. R. A. 483, 2 Ann. Cas. 650. The record here offered shows that two issues were pleaded; one of limitation under the Texas statute, article 3326 Rev. Stats of 1925, prohibiting probate after four years from the testator's death unless diligence be proven, and the other a want of testamentary capacity. If the judgment refusing probate went on the first issue, it settled only that the will could not then be probated in Texas, but settled nothing about its original validity. The record does not show, nor was there any extrinsic proof made, that the court tried and decided the issue of testamentary capacity rather than that of limitation. An estoppel touching the original validity of the will is therefore not established.

That the German will has not been and cannot be probated in Texas, and that another will with a different executrix has been established there have no materiality in this case, because Texas was not the domicile at death of the testator, and the property here in dispute was not assets there for administration. In countries taking their jurisprudence from the English common law, title to land passes only by the lex rei sitæ. To be a muniment of title a will must be executed and proven according to that law, and probate in another state or country has no effect, unless given it by the local law. Darby v. Mayer, 10 Wheat. 465, 6 L. Ed. 367; McCormick v. Sullivant, 10 Wheat. 192, 6 L. Ed. 300; Robertson v. Pickrell, 109 U. S. 608, 3 S. Ct. 407, 27 L. Ed. 1049. On the other hand, while a state may undoubtedly assert power also over personal property actually within its borders, Iowa v. Slimmer, 248 U. S. 115, 39 S. Ct. 33, 63 L. Ed. 158, it is a rule so general as to be esteemed a settled principle of private international law that, unless it affirmatively does so, personal property of a decedent, following the person, passes and is distributed according to the law of his domicile at death, no matter where the property may...