Whitehead v. Roberts

• Decision Date: 19 December 1912
• Parties: WHITEHEAD v. ROBERTS et al.
• Court: Connecticut Supreme Court

85 A. 538

86 Conn. 351

WHITEHEAD

v. ROBERTS et al.

Supreme Court of Errors of Connecticut.

Dec. 19, 1912.

For other definitions, see Words and Phrases, vol. 6, pp. 5668-5674; vol. 8, p. 7767.]

Appeal from Superior Court, Hartford County; Ralph Wheeler, Judge.

Application for writ of prohibition by Charlotte Lucille Whitehead against Owen F Roberts and others. From a judgment sustaining a demurrer to and dismissing the application, plaintiff appeals. No error.

William Waldo Hyde and Alvan Waldo Hyde, both of Hartford, for appellant.

Lucius F. Robinson and John T. Robinson, both of Hartford, for appellees.

HALL, C. J. The plaintiff is a residuary legatee under the will of Cornelia W. Roberts, deceased. The defendant Owen F. Roberts is an executor under said will, and the defendant Miller is the judge of probate for the district of Avon in this state. The application contains these allegations among others: "The court of probate for the probate district of Avon, and state of Connecticut, is exceeding its jurisdiction in that it has taken cognizance of the application of Owen F. Roberts for the admission to probate of the will of Cornelia W. Roberts, late of the city, county, and state of New York, deceased, and has assumed jurisdiction of the settlement of the estate bequeathed and devised by said will as a will of a resident of the probate district of Avon. The said Cornelia W. Roberts died on the——day of ——, 1912, a resident of and domiciled in said state of New York, leaving a will in which the said Charlotte Lucille Whitehead is named as residuary legatee and the said Owen F. Roberts, husband of said deceased, and Louis Case Ledyard, Jr., are named as executors. Subsequent to the death of the said Cornelia W. Roberts, said Owen F. Roberts, her husband, delivered said will into the custody of said court of probate for the district of Avon and filed his application alleging that the said Cornelia W. Roberts died a resident of said district and praying that said will be admitted to probate. Upon said application, said court of probate for the district of Avon issued an order of notice for a hearing upon said application to be held upon the 5th day of September, 1912, and upon said date the parties appeared and said hearing was continued until the 1st day of October, 1912." Upon this application an order was issued requiring the defendants to appear before the superior court and show cause why the application should not be granted, and ordering that no further action be taken by the court of probate in the matter of the probate of said will pending the hearing upon the rule to show cause.

Upon said order to show cause the defendant Roberts appeared and demurred to the application. The demurrer was sustained by the superior court. There were nine grounds of demurrer, which need not be repeated here. The principal questions presented by the demurrer are these: First. Do the facts alleged in the application show that the probate court has assumed jurisdiction of the settlement of the estate of the testatrix? Second. Does the law give to the plaintiff an opportunity to present in the probate court, and in the superior court by an appeal, the question of the residence of the testatrix at the time of her death? Third. If such opportunity is afforded the plaintiff, is he entitled to the writ of prohibition asked for in the application?

The averment of the application respecting the first question is that the probate court has taken cognizance of the application of the executor Roberts for the admission of the will to probate, and has assumed jurisdiction of the estate of Mrs. Roberts as the estate of one who died a resident of the probate district of Avon. What it is alleged the executor did was to deliver the will into the custody of the court of probate, and to file an application with that court alleging that the testatrix died a resident of said district, and asking that the will be admitted to probate in that district. This the law required the executor to do if he claimed that the testatrix last dwelt in the district of Avon.

The only way in which it is alleged that the court of probate assumed jurisdiction of the settlement of the estate was to issue an order of notice for a hearing on a named day, upon said application. This the law required the court of probate, upon such application, to do before admitting the will to probate. General Statutes, § 301. This hearing, owing to the restraining order upon the application for the writ of prohibition, has never been had. The court of probate has therefore not admitted the will in question to probate, nor has it ever decided whether the averment of the application for the probate of the will that the testatrix died a resident of the probate district of Avon is or is not true, nor whether the probate court of Avon has or has not jurisdiction of the settlement of Mrs. Roberts' estate.

Regarding the second question, the law would have permitted the plaintiff Whitehead to present his claim that Mrs. Roberts died a resident of New York, and to present his evidence in support of such claim at the hearing fixed by the probate court for September 5th, had he chosen to do so, and it would not only have been within the jurisdiction of the court of probate to decide that question, but it would have been its duty to do so. Gen. Statutes, supra; Beach's Appeal, 76 Conn. 118, 122, 55 Atl. 596; Mack's Appeal, 71 Conn. 122, 130, 41 Atl. 242; Culver's Appeal, 48 Conn. 165, 171. It is always competent for a court to institute inquiries into matters of fact on which its jurisdiction depends. Huntington v. Birch, 12 Conn. 142, 152. In tribunals of limited jurisdiction, like our courts of probate in which there is no presumption in favor of the existence of jurisdictional facts, they must appear of record in order to give validity to their orders and judgments, and such facts must be found by such tribunals.

The effect of the demurrer to the application for a writ of prohibition which alleges that the testatrix died a resident of New York state is not an admission that the court of probate could not properly entertain the application of the executor for the probate of the will. That application alleged that the testatrix died a resident of the probate district of Avon. The demurrer was a proper method of raising the question of whether the matter of the residence of the testatrix should be first decided by the superior court upon a writ of prohibition or by the court of probate. It admitted the fact that the testatrix resided in New York only for the purpose of testing the sufficiency of the application for a writ of prohibition.

As the court of probate has jurisdiction to primarily decide the question of the residence of the testatrix, it is to be presumed that it will decide it correctly. Butler v. Sisson, 49 Conn. 580, 581. If it decides it in favor of the present plaintiff, he will not be so aggrieved as to entitle him to a writ of prohibition merely because the probate court's decision of such jurisdictional question may be collaterally attacked. Such judgment of the probate court would stand as a valid decision of a jurisdictional fact until directly or collaterally impeached. As the court of probate has jurisdiction to so determine the preliminary question of the testatrix's residence, this plaintiff would have a right of appeal from an adverse decision of the court of probate upon that question, and the right to have the question of residence decided by the superior court and the judgment of that court upon that question of fact would be conclusive, and, if in favor...