The bare appointment of an executor or administrator of a
deceased person by the courts of one state cannot be held, on
principle or authority, to foreclose inquiry as to the domicil of
the deceased in the courts of another state.
The general rule is that administration may be granted in any
state or Territory where unadministered personal property of a
deceased person is found, or real property subject to the claim of
any creditor of the deceased.
The constitutional provision that full faith and credit shall be
given in each state to the judicial proceedings in other states
does not preclude inquiry into the jurisdiction of the court. in
which the judgment is rendered, over the subject matter or the
parties affected by it, or into the facts necessary to give such
jurisdiction.
Page 176 U. S. 351
Joseph Fabacher died March 3, 1897, in the City of New Orleans,
leaving a last will and testament dated October 29, 1896, in which
he described himself as of Waukesha, Wisconsin, where the will was
executed and where he had a residence and a considerable amount of
personal property. His widow and ten of his children were named as
legatees and devisees. On March 27, 1897, A. J. Frame, appointed
executor, presented the will for probate in the County Court of
Waukesha County, Wisconsin, alleging that it had been duly executed
under the laws of Wisconsin and that Joseph Fabacher was at the
time of his decease "an inhabitant of the said County of Waukesha."
Publication of the application was made according to law, and the
matter set for hearing May 4, 1897. On that day, Antoinette
Thormann, daughter of Fabacher by a prior marriage, appeared and
objected to the admission of the instrument to probate, alleging
herself to be, under the law of Louisiana, the sole heir of the
deceased and also setting forth matters which, it was contended,
would by the law of that state disqualify the beneficiaries named
in the will from taking under it, and averring, as to Joseph
Fabacher, that
"continuously ever since 1843 up to and at the time of his death
he, the said deceased was domiciliated in the City of New Orleans,
in the State of Louisiana, and an inhabitant and resident thereof,
and that this court has no jurisdiction in the probate of said
alleged last will and testament and in the settlement and
distribution of said estate of said deceased."
She further charged that any attempt on the part of Fabacher to
acquire or create a domicil at Waukesha was in fraud of her rights;
that the will was procured by undue influence, and that it was not
duly executed in the manner and form required by law. It was
conceded that Fabacher's adult children resided in New Orleans, but
insisted that the domicil of the minor children was in Wisconsin,
and a guardian
ad litem was appointed as to them. Trial
was had in the county court, which held the will in all respects
valid, that at the time of his death and some time prior thereto,
Joseph Fabacher was domiciled in the County of Waukesha, State of
Wisconsin, and that the will was entitled to probate.
The case was then carried to the Circuit Court of Waukesha
Page 176 U. S. 352
County, and there tried before a jury, who returned a verdict
sustaining the will and finding the domicil of Joseph Fabacher at
the time of his death, March 3, 1897, to have been at the City of
Waukesha, whereupon the circuit court made findings of fact and
conclusions of law and entered judgment admitting the will to
probate and affirming the judgment to that effect of the county
court. A large amount of testimony was introduced on these trials,
and, among other things, it appeared that on March 29, 1897,
Antoinette Thormann petitioned the civil District Court for the
parish of Orleans, Louisiana, to be appointed administratrix of the
succession of Joseph Fabacher, her father, asserting that he
"was at the time of his death and many years before a citizen of
Louisiana, domiciled and residing in the City of New Orleans; that
said deceased left property in this city and within the
jurisdiction of this honorable court,"
and "that your petitioner is the sole surviving heir and
legitimate child of said deceased, issue of his marriage with
petitioner's mother. . . ." Letters of administration were granted
by the court April 30, 1897.
The inventory stated the property of deceased as
"one marble tomb in lot situated in St. Joseph Cemetery, No. 2,
bearing the inscription, 'Family of Joseph Fabacher;' also two (2)
galvanized iron sofas and five (5) vases, valued by said appraisers
at the sum of thirty-five hundred dollars ($3,500)."
An attempt was made to inventory some household effects, which,
however, were claimed as the property of one of the sons.
From the judgment of the Circuit Court of Waukesha County an
appeal was taken to the Supreme Court of Wisconsin, the judgment
affirmed, and the record remanded to the circuit court. 102 Wis.
653. A writ of error having been sued out from this Court, motions
to dismiss or affirm were submitted.
Page 176 U. S. 353
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
The contention is that the issuing of letters of administration
to Mrs. Thormann by the Civil District Court of the Parish of
Orleans was an adjudication that Fabacher was domiciled in that
parish at the time of his death, that Mrs. Thormann was the sole
surviving heir, that he died intestate, that this adjudication was
in all these respects conclusive against the world, and that the
Wisconsin courts, in admitting the will to probate, did not give to
the Louisiana proceedings that full faith and credit to which they
were entitled under the Constitution and laws of the United States,
and therefore denied a right secured thereby.
But it is objected that no such right was specially set up or
claimed in the county and circuit courts, and this would appear to
have been so. The Louisiana record was not pleaded, and seems to
have been offered and admitted in evidence as tending to throw
light on the question of domicil, and not as concluding it. Mrs.
Thormann contested that question on the merits, and also denied the
validity of the will in respect of its execution, and because of
undue influence. As the supreme court was reviewing the decision
below for errors committed there, it would ordinarily follow that
error could not be predicated on the deprivation of a right which
had not been asserted, and perhaps might properly be held to have
been waived.
However, while we think that, on this record, there was color
for the motion to dismiss, we shall decline to sustain that motion
inasmuch as the supreme court, in its opinion, considered the
particular question here presented, but will dispose of the case on
the motion to affirm, as the ruling of that court, so far as open
to our examination, is so obviously correct under the circumstances
that further argument is unnecessary.
The question before us is whether the supreme court deprived
Mrs. Thormann of a right secured to her by the Constitution and
laws of the United States in holding that her appointment as
administratrix of the succession of Joseph
Page 176 U. S. 354
Fabacher was not a conclusive adjudication that Fabacher's
domicil was at the time of his death in the Parish of Orleans,
Louisiana. The court said:
"The record of the Louisiana court in evidence merely shows that
the contestant was, after appropriate proceedings, appointed
administratrix of the succession of the deceased, and that the
inventory of the estate there presented consisted of the tomb, etc.
There was no attempt in that court to adjudicate as to the property
situated in Wisconsin, nor as to the domicil of the deceased. That
court, it may be conceded, had jurisdiction as to any tangible
property actually located in that state. . . . Certainly there was
no adjudication in the Louisiana court which precluded the County
Court of Waukesha County from taking jurisdiction and admitting the
will to probate and administering so much of the estate as was
actually located in Wisconsin, and this includes the bonds,
mortgages, and evidences of debt deposited in the Waukesha bank
with the president thereof, who is executor of the will."
Fabacher's property in Wisconsin consisted of movables and
immovables. His will was executed in that state in accordance with
its laws, and was open to no objection for want of testamentary
capacity. But Mrs. Thormann resisted the probate on the ground that
the will was invalid by the law of Louisiana, and that that law
must be applied in Wisconsin, because Louisiana was, and Wisconsin
was not, the domicil of the deceased. We need not go into the rules
and their exceptions governing such cases, for the issue as to
Fabacher's domicil, raised by Mrs. Thormann in the Wisconsin
proceedings to which she made herself a party, was regularly tried
at large and determined against her. Nevertheless she contended in
the state supreme court that the judgment below was erroneous as
matter of law because the question of domicil had been absolutely
concluded by her appointment in Louisiana.
Yet the proceeding in Louisiana, instituted, it may be remarked,
after the will was presented for probate in Wisconsin, amounted to
no more than an
ex parte application for letters of
administration and a grant thereof. Doubtless the destination
Page 176 U. S. 355
of the tomb and accompanying seats and vases was thereby fixed,
but not that of property in Wisconsin; nor can the bare appointment
be held on principle or authority to foreclose inquiry into the
fact of domicil in the courts of another sovereignty.
The technical distinction between an original and an ancillary
administration is unimportant here.
Whatever the effect of the appointment, it must be as a judgment
and operate by way of estoppel. Now a judgment
in rem
binds only the property within the control of the court which
rendered it, and a judgment
in personam binds only the
parties to that judgment and those in privity with them. The
appointment cannot be treated as a judgment
in personam,
and as a judgment
in rem it merely determines the right to
administer the property within the jurisdiction, whether considered
as directly operating on the particular things seized or the
general status of assets there situated.
In this country, the general rule is
"that administration may be granted in any state or territory
where unadministered personal property of a deceased person is
found, or real property subject to the claim of any creditor of the
deceased."
1 Woerner on Administration (2d ed.) ยง 204.
As to successions, the law of Louisiana provides as follows
(Code of Practice, 1899):
"Art. 929. The place of the opening of successions is fixed as
follows:"
"In the parish where the deceased resided, if he had a fixed
domicil or residence in this state."
"In the parish where the deceased owned immovable property if he
had neither domicil nor residence in this state, or in the parish
in which it appears by the inventory his principal effects are if
he have effects in different parishes."
"In the parish in which the deceased has died if he had no fixed
residence nor any immovable effects within this state at the time
of his death."
The order of appointment by the Louisiana court did not make,
nor did the letters themselves recite, any finding as to Fabacher's
last domicil, and as he died in the Parish of
Page 176 U. S. 356
Orleans, and owned, as contended, immovable property and effects
there, such a finding was wholly unnecessary to jurisdiction, and
is not to be presumed.
In
DeMora v. Concha, 29 Ch.Div. 268, it was held that
the decree of a probate court was not conclusive
in rem as
to domicil, although the fact was found therein, because it did not
appear that the decree was necessarily based on that finding and it
was doubted whether the findings on which judgments
in rem
are based are in all cases conclusive against the world. The
decision was affirmed in the House of Lords, 11 App.Cas. 541. The
case is a leading and instructive one, was ably argued, and has
been repeatedly followed since the judgment was pronounced.
In
Brigham v. Fayerweather, 140 Mass. 411, conclusive
effect to judgments in probate proceedings in respect of their
grounds was denied altogether.
Again, it is thoroughly settled that the constitutional
provision that full faith and credit shall be given in each state
to the judicial proceedings of other states does not preclude
inquiry into the jurisdiction of the court in which the judgment is
rendered, over the subject matter, or the parties affected by it,
or into the facts necessary to give such jurisdiction.
Thompson v.
Whitman, 18 Wall. 457;
Cole v. Cunningham,
133 U. S. 107;
Grover and Baker Sewing Machine Co. v. Radcliffe,
137 U. S. 287;
Simmons v. Saul, 138 U. S. 439;
Reynolds v. Stockton, 140 U. S. 254;
Cooper v. Newell, 173 U. S. 555.
The point before us is a narrow one, but in any aspect in which
it may be considered, we are unable to assent to the view that the
Supreme Court of Wisconsin was bound to treat the proceeding in
Louisiana as conclusively determining the question of domicil, and
unless it was so bound, its decision deprived plaintiff in error of
no right secured to her by the Constitution and laws of the United
States.
Judgment affirmed.
