Plant v. Harrison

The primary object of this action is the establishment of the will and codicils of the late Henry Bradley Plant as the will of a resident of the county of New York. The plaintiff is his widow, while the defendants, with the exception of the infant defendant, are executors and trustees under his will. A résumé of the material allegations of the complaint shows the following state of facts:

Henry Bradley Plant died on the 23d day of June, 1899, in the eightieth year of his age, at the city of New York. Eor the preceding 25 years he had been continuously domiciled in the county of New York, having his permanent home at No. 586 Fifth avenue, where he died; while his permanent office for the transaction of business was. at No. 12 West Twenty-Third street, in that city. He left, him surviving, his widow, the plaintiff, and an only son, the defendant Morton Freeman Plant, the issue of whose marriage is a son about four years of age, named after the testator, and who is the infant defendant in this action. He left a last testament, consisting of a will, dated January 23, 1893, and three codicils, dated respectively November 22, 1894, May 25, 1899, and June 20, 1899. The will and the first two codicils were severally executed at the city of New York, while the last codicil was executed at the city of New Haven, in the state of Connecticut. The complaint thereupon alleges that by the execution of the New Haven codicil it was his object to circumvent and evade the laws and 'policy of the state of New York, and to suspend the absolute ownership of personal property and the absolute power of alienation of real estate for a longer period than permitted by the laws of this state, and that the declaration in the codicil that he was a resident of New Haven was made for the purpose of carrying out such object, when in fact he was not then, nor at the time of his death, a resident of Connecticut; that at the time of his death he was not seised of any real property either in New York or in Connecticut, but was possessed of over ten millions of dollars of personal property (at the time of the trial its value had doubled), consisting mostly of stocks and bonds of various corporations; that the physical location

On the issues thus raised a very extended trial has been had before me. Barring the expert evidence on the status of the law of Connecticut, the voluminous testimony was confined mainly to two underlying questions of fact. The first and fundamental one was the issue of domicile. Of what jurisdiction did Mr. Plant die a resident? The second was the question of the alleged fraud on Mrs. Plant and on the Connecticut probate court in the proceedings involving the admission of Mr. Plant’s will to probate in the district of New Haven. After a somewhat extended examination of this latter question I have decided not to state my conclusions thereon,—• First, because it becomes immaterial in the view I take of the case; secondly, because there is doubt whether fraud is adequately pleaded (Plant v. Harrison, 52 App. Div. 434 , 65 N. Y. Supp. 234 ); and, thirdly, because of the graver doubt whether, under the decisions of the federal courts controlling in this instance because a constitutional question is involved, the judgment of a court of a sister state may be impeached for fraud (Christmas v. Russell, 5 Wall. 290 , 18 L. Ed. 475 ; Simmons v. Saul, 138 U. S. 439 , 11 Sup. Ct. 369 , 34 L. Ed. 1054 ; Garrett v. Boeing, 15 C. C. A. 209 , 68 Fed. 51 ; Hanley v. Donoghue, 116 U. S. 1 , 4, 6 Sup. Ct. 242 , 29 L. Ed. 535 ). I address myself then to the question of domicile.

I do not deem it necessary to preface the discussion of the facts with any lengthy statement of principles of law. Domicile is so essentially a question depending upon the minute facts and circumstances of each particular case that precedents, with necessarily varying facts, are of slight assistance. A fact of controlling importance in one case is more than likely to have but slight significance in relation to all the facts of some other case. Definitions of domicile are themselves unsatisfactory. That given by Judge Story in his Conflict of Laws ([8th Ed.] p. 41), to the effect that “in a strict legal sense that is properly the domicile of a person where he has his true, fixed, permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning,” is perhaps as good as any, and may be applied to this case. Beyond this a brief extract from the leading case in this state, Dupuy v. Wurtz, 53 N. Y. 556 , will give a succinct statement of the fundamental principles according to which questions of domicile, like the one under consideration, must be tested:

“To effect a change of domicile for the purpose of succession, there must be not only a change of residence, but an intention to abandon the former domicile and acquire another as the sole domicile. There must be both residence in the alleged adopted domicile and intention to adopt such place of residence as the sole domicile. Residence alone has no effect per se,

though it may be most important as a ground from which to infer intention. Length of residence will not alone effect the change; intention alone will not do it; but the two taken together do constitute change of domicile,”— at page 561.

A domicile of choice being gained anima et facto can be relinquished only in the same manner. Udny v. Udny, L. R. 1 H. L. Sc. 441. But both the animus et factum must be expressive of the present intention to reside presently and permanently in the domicile. Personal presence, coupled with the intention to begin in futuro a residence of however permanent character, is not sufficient. Jac. Dom. § 177. Abandonment in fact of the old domicile, residence in the new locality, and the intention to remain there are the essential requisites. The length of the residence in the new domicile is-quite immaterial so long as the intention is bona fide, and is consummated by ,an adequate act. It is well, perhaps, to bear in mind, in considering the facts of the case at bar, that, while a domicile of origin reverts easily upon relinquishment of a domicile of choice, the American decisions have not gone the length of the English authorities in the application of this principle. The English rule that the domicile of origin reverts at once upon the abandonment of the domicile of choice (Udny v. Udny, supra) has not been followed in this country, where the rule seems to be that a domicile once acquired continues not only until it is abandoned, but until another is acquired. Jac. Dom. § 114. Bearing these general principles in mind, let us now search the facts.

Henry Bradley Plant, the testator, was born at Branford, in the state of Connecticut, on the 27th day of October, 1819. His ancestors on both sides of the line were of old Connecticut stock, and on the paternal side had been residents of Branford almost from its earliest settlement. His father died when he was still very young, and, his mother having remarried, he was taken by her to Martins-, burg, N. Y., the home of his stepfather, and thence, after a short time, to New Haven, Conn., where she acquired a permanent residence. It appears that his boyhood was spent between his mother’s home at New Haven and his grandmother’s place at Branford. In 1837, when he became a deck hand on a line of boats plying between New Haven and New York, he began his varied and successful business career, the requirements of which seem to have exercised a determining influence on his successive places of domicile, even to the attempted return to New Haven in his old age. In 1840 he became a registered elector or voter of the town of New Haven, and two years later married his first wife at Branford. Shortly thereafter he engaged in the express business in connection with the steamboat line on which he had been employed, and that gradually grew to such proportions that his presence was more and more required in New York. From the lists of registered electors of the city of New York, and from the statements made by his biographer and by his son, the inference is fair that he acquired a residence in the city of New York, probably in Spring street, some time between 1846 and 1854. In the latter year he removed to Augusta, Ga. Here he resided, and just prior to the beginning of the Civil War organized the

On this statement of facts there would seem to be a very complete identity between legal residence or domicile and physical residence. In fact, so firmly rooted does his domicile in New York appear, that only the clearest evidence of a consummated intention could avail to establish domicile elsewhere. We have now to consider the facts relied on to effect this change. Mr. Plant died on June 23, 1899. It was conceded on the trial—what could not be substantially disputed—that up to June 17th of that year he was domiciled in New York. The defendant Harrison, the attorney who guided his footsteps in the avowed attempt to establish New Haven as his legal home, testified to having told Judge Cleaveland, of the New Haven probate court, on the 28th day of June, 1899, that Mr. Plant was domiciled in New York “until quite recently,” and the defendant Erwin, also one of Mr. Plant’s attorneys, admitted on the stand that June 17, 1899, marked the termination of Mr. Plant’s legal residence in New York. We have, then, primarily to consider what evidence there is of Mr. Plant’s intention to change his domicile, and, secondly, the occurrences of that interval of six days that are claimed to give expression by act to the indicated intention. The defendants trace back the expression of intention to the beginning of 1898, when he spoke to the defendant Tilley of the intended unification of all his interests in one company to perpetuate his name under the title of the Henry Bradley Plant Company. This was followed in January, 1899, by a talk with Harrison, who suggested that it was unnecessary to incorporate a new company, but that an application could be made under the charter of the Southeastern Investment Company for a change of name. This was accordingly done, and on the 13th day of April, 1899, the superior court of Connecticut authorized the change. It is contended by the defendants that intermediate this date and the 23d day of J une—the date of Mr. Plant’s death—he had conveyed substantially all his property to the new corporation; and this is invoked as expressive of his intention to follow his property, and to acquire a domicile at the locus of his entire estate. In other words, he centralized his possessions where he had chosen to make his future legal residence, and the act is relied on to show the choice. I shall have more to say hereafter on the relation of intent to act as affecting a consummated change of domicile as well as on the relation of motive to intent. It may be well to state at once, however, as a guide .through this analysis, that, whatever the motive, the record discloses unmistakable evidence of expressed intent, at least in words, of some time changing his domicile to Connecticut, and that the real question to be determined is whether that intention was ever legally carried out. It may, therefore, be conceded that the question of the transfer of Mr. Plant’s property to the corporation perpetuating his name helps, as claimed by the defendants, to establish his intent, and becomes a part of its expression. In this concession, however, I am even disregarding the not unimportant fact that the idea of unification, according to the testimony of the defendant Morton F. Plant,

On the 24th day of May, 1899, there was a discussion concerning the proposed execution of a codicil on the day following. Harrison testifies that Mr. Plant at that interview stated “that he had intended for some time to resume his home in Connecticut, his birthplace, and resume his domicile there.” Erwin corroborates him, and adds that Mr. Plant proposed further changes in his will after his resumption

“New York, June 10th, 1899.

“Mr. Edwin H. Peaslee, Chairman Finance Committee, 27th Assembly District Republican Club, 767 and 769 Sixth Ave., City—Dear Sir: I am in receipt of your favor of the 9th Inst., which has been delayed acknowledgment because of my absence from the city. It is my expectation within a very short time to change my residence to Connecticut, my birthplace, in consequence of which I do not expect to again be able to cast my vote in New York City. I wish for the party, however, every success and especially in national affairs.

“Respectfully, [Signed] H. B. Plant.”

Regardless of motive, we have here at least an unequivocal expression of intention to change his residence “within a very short time.” All that preceded this satisfies me that there was merely a gathering intent, so to speak,—the kind of intent which a man has, while fixed in a permanent place of abode, of some time settling elsewhere. According to this letter Mr. Plant had now reached the stage when the intent had passed from passivity into activity, and expected “within a very short time” to bring about its consummation. Seven days later he was dead, and the “very short time” becomes, in effect, “immediately”; the occurrences of the four days following the date of the letter being relied on legally to effectuate the intent, and to establish by overt acts residence in the new locality. Three overt acts are relied on by the defendants. These will best appear by a narrative of Mr. Plant’s movements from the i6th day of June to the 23d, the day of his demise. On Friday, the 16th', at 3 o’clock, Mr. Plant, accompanied by his valet, Wilson, and a maid, Mary Cahill, left New York for Branford. They went through to their destination without stopping at New Haven. He took with him two bags and a basket of food. Fannie Hinde, the housekeeper, who packed one of the bags, testifies that its contents consisted of one shirt, a pair of slippers, and stockings enough to last him for two or three days. The other bag packed by the valet contained the instruments Mr. Plant required in consequence of his illness. The food was intended for his meals while at Branford. It appears that he was sick while there, and left the house only once, then to go to the local cemetery. On Sunday, the 18th day of June, one of Mr. Plant’s distant relatives —the wife of a second cousin—called on him. She testifies that he told her that Mrs. Plant had not accompanied him, as he could only stay a short time, and that “he had orders from his family physician

We have now to examine the happenings of that interval. The maid having been sent ahead with a message to Mrs. Plant that he would'be “home” in the evening, and the valet, by Mr. Plant’s instructions, remaining at the depot to attend him on the return to New York, Mr. Plant went to the office of his attorney, the defendant Harrison, who testifies that he arrived there at about 10 o’clock. Pie remained an hour or so, talking of various matters, first giving instructions for an alteration in his will, and directing that it be redrafted for execution that afternoon. Thereafter he talked about the affairs of the Henry Bradley Plant Company, and finally of visiting that afternoon, with a view to its possible purchase, the house of a Mrs. Hotchkiss that had been pointed out to him some 11 days previous. At about this stage of the interview one Zacher, an attorney associated with the defendant Harrison, entered the room, and without preliminary Mr. Plant said to him, as Zacher testifies: “I want to say to you, Mr. Zacher, that New Haven is now my home. When in town I shall occupy my own house on Crown street, with Mrs. Hoadley, until I get another one.” Harrison’s version of this declaration of Mr. Plant is in this language: “I am now a resident of New Haven, Mr. Zacher, and I intend to live in my house with Mrs. Hoadley, my sister-in-law, until I get the new house, ready for occupancy.” The time and manner of this declaration are of great importance as bearing on all the three overt acts relied on by the defendants ; acts—two of which are here foreshadowed—which occurred, if at all, subsequently to this declaration, and which were the conditions precedent to the acquisition of residence, here stated as if already acquired. The first of these alleged overt acts occurred after he left Mr. Plarrison’s office about noon. He went to a house in Crown street, occupied by his -sister-in-law, Mrs. Hoadley, who was the widow of his half-brother. This house, devised to him by his mother, had been his property for a long time covering the period of his conceded residence in New York. Mrs. Hoadley had occupied it since 1887 at an annual rental of $600, which sum, however, she was privileged to devote to such repairs as she might require, making payment to him merely of the balance. This house was one of the first pieces of real property conveyed to the Henry Bradley Plant Company pursuant to Mr. Plant’s unification scheme, the deed

To return now to the first overt act. It is claimed to be embraced in the statement made by Mr. Plant to Mrs. Hoadley when he called on her on the 20th day of June. Various versions are given of what transpired, and are founded in alleged statements made by Mr. Plant upon his return to Harrison’s office, and upon the repetition by the plaintiff of statements made to her by Mrs. Hoadley. Two salient facts stand out in the accounts given on behalf of the defense: First, the announcement to Mrs. Hoadley of prior acquisition of residence in New Haven; and, secondly, the arrangement to board with her. According to Harrison, Mr. Plant said he had told Mrs. Hoadley he “had come to board with her.” Harrison’s stenographer reports Mr. Plant as saying he “would come” and board with her. Erwin claims that Mr. Plant’s admission was to the effect that he had told Mrs. Hoadley that he “had fixed” his residence in New Haven, and that “he was going to board with her.” In their brief the defendants select the following account, given by the defendant Morton F. Plant, as the reliable narration of Mr. Plant’s repetition of the occurrence: “Jennie [Mrs. Hoadley] told me that the last time Henry was here he came up to the house and said, T am now a resident of New Haven, and until such time as I can get a house to live in I want you to consider me as .a boarder.’ ” Mrs. Plant does not dispute having reported the interview with Mrs. Hoadley. But her testimony of what Mrs. Hoadley told her contains no mention of change of residence, and all reference to the boarding question is qualified as having been made jocularly. Mrs. Hoadley, the only living witness to the interview, not only corroborates Mrs. Plant, but emphatically asserts that the fact of his having become a resident of New Haven was “never mentioned” by Mr. Plant. She also gives a very credible account of Mr. Plant’s “jokingly” referring to boarding with her,—credible because of their previous relations, and because of his announcement, almost in the same breath, that “he was going home that afternoon” to New York. The defendants rely on the statements to Mrs. Hoadley as showing an election to make New Haven his legal residence. That is the overt act. Two considerations suggest themselves in answer: (1) If the existence or nonexistence of the overt act is dependent on the version of the interview given by the defendants, it may well be said to have failed of proof, in that the conflict of evidence raises sufficient doubt as to the actual occurrences as to require a finding that the defendants have failed to carry the burden of proof as to this overt act. (2) I prefer, however, to reject this overt act on a theory that accepts verbatim the defendants’ version of the interview above quoted. In view of Mr. Plant’s declarations earlier in the morn

So much for the first overt act. As yet we have not gotten beyond intention. The second overt act is claimed by the defendants to be “the purchase of the Church street house from Mrs. Hotchkiss, and his insistence upon immediate possession of it in order to make alterations therein.” After leaving Mrs. Hoadley Mr. Plant returned to the office. There, according to Harrison and the stenographer, he indulged in the declarations of the Hoadley interview already referred to, and, that done, he set out shortly after 2 o’clock, in company with Mr. Harrison, to perform that which the defendants designate as the second overt act. They went to the house of a Mrs. Hotchkiss, located in the immediate vicinity of the office. Up to that time Mr. Plant had never been inside of it. On the ioth of June,—io days previous,—however, he had, together with Mrs. Plant and Harrison, driven around New Haven looking at various houses from the outside, but without leaving the carriage, and among others the Hotchkiss house had been pointed out by Mrs. Plant as an apparently desirable location. Mr. Plant had asked whether the house was for sale, and instructed Mr. Harrison to make inquiries. No offer or price had been made until the 19th, when Mrs. Hotchkiss expressed a willingness to sell for $85,000. This offer was communicated to Mr. Plant on the 20th, before he went to look at the premises. Arriving there, Mr. Plant began by examining the house, Mrs. Hotchkiss and her daughter acting as his guides. These ladies testify that Mr. Plant examined up to the third floor, looking at closets, stairs, and cellar; that he inquired whether an elevator could be placed where the back stairs came up from the basement to the first floor; that he made some statements to the effect that he wanted to use the basement exclusively for an office; that the suggestion was made that he did not need the back stairs from his office to the first floor, and that Mr. Plant replied, “It

Conceding, therefore, that Mr. Plant made all the statements ascribed to him, is there here again anything more than a mere expression of intention? Perhaps an intention more definitely developed than four days previous, when Mr. Plant addressed the letter to the finance committee of the Republican club, but still only an in-completed purpose. His acts may have been expressive of intention, but they did not consummate it. The Hotchkiss incident furnishes no definite act. Mr. Plant enters a house for the first and only time in his life, makes inquiries with a view of its possible ultimate acquisition. All the questions relating to its adaptability to his wants preceded the expression of satisfaction as to the house and price, as it would in the case of any other place he might examine. Even the “It is my residence, sir,” upon which so much stress is laid, was a similar preliminary statement, and cannot be held to mean more than,

I have left for the last the third alleged overt act,—declarations made by Mr. Plant to various persons that he was a resident of New Haven. He began making these in the defendant Harrison’s office before going either to Mrs. Hoadley or to Mrs. Hotchkiss. The other declarations were made after his return from the Hotchlcisshouse. Upon leaving there he returned with Harrison to the latter’s-office, and executed the codicil, which in the morning he had directed to be changed. In this codicil he described himself as of New Haven. o This description would have probative force had it been-based on precedent domiciliary acts, and any force it may have as a declaration is weakened by the fact that on the gth of June, according' to Mr. Harrison, a draft of this codicil was presented to Mr. Plant, wherein he was then already described as a resident of New Haven. After the execution of the codicil, and about the middle of the afternoon, Mr. Plant left for the railway station, where his valet was awaiting him. There he met two acquaintances, Messrs. Barton and Rawson. To them he said': “By the way, I am á resident of New ITaven now. I have bought a house here, and I am coming here to live.” This was his last act in New Haven. He thereupon boarded the train, returned to the house at 586 Fifth avenue, and never again set foot in the alleged new domicile. The record, however, shows that he made two further declarations of similar purport

I have now examined at length the overt acts, traced Mr. Plant’s movements from the day he left New York until the day he returned, and found nothing in the facts relied on b)r the defendants to bring about the change of domicile. Were there any doubt in my mind either as to the effect to be given to the Hoadley and Hotchkiss incidents or to the declarations, Mr. Plant’s acts and general conduct after leaving New Haven show such inconsistency

While I do not attach too much importance to Mr. Plant’s frequent use of the word “home,” in the sense of giving to it the effect of legal residence, yet it is most significant in pointing his own conception of the pretended change, and his own treatment of it as nominal merely. Colloquially, people speak of that place as “home” which in the overwhelming majority of cases legal construction declares to be domicile. If Mr. Plant considered himself a resident of New Haven by virtue of the occurences culminating on the 20th day of June in New Haven, I am quite satisfied that his intent was not bona fide. I am not concerned with what further acts he might have performed had he lived. The fact is he made declarations of present acquisition of domicile in New Haven at a time when there had been no actual residence, and when there was absence •of any sufficient indication of intention of making it his permanent home. It must be obvious that Mr. Plant'was acting under the guidance of his Connecticut legal adviser, who directed his steps, and prompted to him the declarations he was to make in the attempt to reach the goal. In fact, Mrs. Plant testified that the defendant Harrison had several times asserted that the change to Connecticut was a “matter of form” merely. It does not require an extensive search to discover motive. Mr. Plant’s proposed testamentary disposition was invalid under the laws of New York, but valid under the laws of Connecticut. Beyond this very obvious inducement to acquire a New Haven domicile, there are more or less definite items of evidence showing a desire to escape New York burdens of taxation. On the whole record this seems to me to be one of those exceptional class of cases where motive has a not unimportant bearing on the question of domicile. Jac. Dom. § 142; Dicey, Dom. 145; 10 Am. & Eng. Enc. Law, 20; Briggs v. French, 2 Sumn. 251 , Fed. Cas. No. 1,871; Butler v. Farnsworth, 4 Wash. C. C. 101 , Fed. Cas. No. 2,240; Morris v. Gilmer, 129 U. S. 315 , 9 Sup. Ct. 289 , 32 L. Ed. 690 . I am not considering motive as determining the change of domicile, but merely as reflecting on the bona fides of the intent. Ordinarily, the question of motive is quite immaterial in the solution of questions of domicile, inhabitancy, or citizenship. The law does not inquire into a man’s reason for changing either his national or municipal domicile. Relief from the burdens of taxation may constitute a very proper motive, and one that becomes quite irrelevant if the change anima et facto is otherwise established. McConnell v. Kelley, 138 Mass. 372 ; Thayer v. City of Boston, 124 Mass. 132 , 26 Am. Rep. 650 . As Judge Story puts it in Briggs v. French, 2 Sumn. 251 , Fed. Cas. No. 1,871: “Provided the removal be real, and not merely nominal, and he has truly become a citizen of another state, I have never understood that his motive of this act is inquirable into;” or, as he said in Case v. Clarke, 5 Mason, 70, Fed. Cas. No. 2,490: “His removal must be a real one,— anima manendi,—and not merely ostensible.” As evidence of intention, however, motive is important. It becomes significant “from its effect as evidence for the existence or nonexistence of the animus

It is proper at this stage, for the purpose of completeness, to-make reference generally to the defendants’ authorities on the question of domicile. Here again the caution is necessary that every-case of domicile must be determined in the light of its own facts in their, relation to each other. In the view that I take of the facts of this case, I find no abandonment of the old, no residence in the new, domicile. All the cases relied on by the defendants-show unequivocal abandonment of residence. Guier v. O’Daniel, 1 Bin. 349 , note, emphasizes the necessity of constant residence, rather than the manner of it. But it requires the present act, whether that be “on rent, at lodgings, or in the house of a friend,” to-show the constant purpose. Railroad Co. v. Ohle, 117 U. S. 123 , 6 Sup. Ct. 632 , 29 L. Ed. 837 , was a case where the jury found, on submission to it of the question of good faith, that the defendant had, with bona fide intent, abandoned his Illinois domicile for the-purpose of acquiring one in Wisconsin. This case is one of the-many where the right to remove from one jurisdiction to another in order to bring suit has been recognized ■ and upheld where the bona fide intent to reside permanently has been established. White v. Tennant, 31 W. Va. 790 , 8 S. E. 596 , 13 Am. St. Rep. 896 ,—much-relied on by the defendants,—is in every way an exceptional case,, but, even as such, not in conflict with the one at bar. The question was the domicile of an intestate, who, up to April 1, 1885, had his domicile in West Virginia. He had sold his farm, and given the-purchaser possession on that date. Prior thereto he had arranged, with other members of his family to move to a farm in Pennsylvania. On the 2d day of April he started for his Pennsylvania house,, but, being overtaken by rain, he stopped at a relation’s in West Virginia, where he died. It is apparent that there was here an. unequivocal abandonment of the old domicile “sine anima revertendi.” The bon,a fide intention to reside permanently in Pennsylvania was seized upon to supply the lack occasioned by inability to occupy the future home. He was held technically domiciled there,, partly because for purposes of succession a man must always have-one legal domicile, and partly because it would have been absurd', and impossible to declare that he had two. Having abandoned the one, that could not be his domicile. Being en route “for the expressed purpose of making a fixed place his home for an indefinite-

A final word should be said in relation to the defendants’ argument that, Connecticut being Mr. Plant’s domicile of origin, he immediately reacquired it upon his election that New York should no longer be his legal residence. Even conceding abandonment of the New York domicile of choice, the defendants’ argument proceeds rather along the line of the English cases (Udny v. Udny, supra) than along that of the American ones (Jac. Dom. § 114), the difference between which has already been adverted to. In the view I take of the case, however, I do not reach the question of reverter at all, as I hold that there has been no abandonment of the New York domicile. I do not follow the defendants in their argument that a mere election to abandon, exercised under circumstances where there was a continued physical residence in the domicile elected as abandoned, will cause a revivor of the domicile of origin. Such a thesis, I take it, would be quite revolutionary of the entire law of the change of domicile, and supplant the inseparable anima et facto by anima merely. The mere statement contains its own refutation.

Mr. Plant, then, died a domiciled resident of the state and city of New York. Here was the situs, therefore, of his vast personal

“A party cannot, after invoking the jurisdiction of a probate court in Connecticut upon an application for the probate of a will, and after the question of the domicile of the decedent at the time of his death has been raised, and evidence has been taken thereon by the court, and the court has judicially determined upon such evidence the question of domicile, attack such judgment or decree collaterally anywhere.”

It now behooves to examine the applicability of this principle under the law and facts of this case. The constitution of the United States (article 4, § 1) provides:

“Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state; and the congress may, by general laws, prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.”

Congress prescribed the effect by the statute of May 26, 1790, now embodied in section 905 of the Revised Statutes, which, after providing how the judgment of a sister state shall be authenticated, continues:

“And the said records and judicial proceedings, so authenticated, shall have such faith and credit given to them in every court within the "United States as they have by law or usage in the courts of the state from which they are taken.”

Since the first authoritative interpretation of these provisions in the case of Mills v. Duryee, 7 Cranch, 481 , 3 L. Ed. 411 , which was first misread to preclude jurisdictional inquiries, the rule has been uniformly announced through a long line of cases that foreign judgments .shall have the same effect as in the home forum. Hampton v. McConnel, 3 Wheat. 234 , 4 L. Ed. 378 ; Christmas v. Russell, 5 Wall. 290 , 18 L. Ed. 475 ; McElmoyle v. Cohen, 13 Pet. 312 , 10 L. Ed. 177 ; Bank v. Farnum, 176 U. S. 640 , 20 Sup. Ct. 506 , 44 L. Ed. 619 ; Embry v. Palmer, 107 U. S. 3 , 2 Sup. Ct. 25 , 27 L. Ed. 346 . Inquiry into the jurisdiction is always open, but beyond that the sister state judgment is to receive the same “faith and credit” that it has in the home forum. We may not give it less effect than in the forum of its rendition. We are not required to give it greater. In fact, we may not. Board of Public Works v. Columbia College, 17 Wall. 521 , 21 L. Ed. 687 ; Robertson v. Pickrell, 109 U. S. 611 , 3 Sup. Ct. 407 , 27 L. Ed. 1049 ; Suydam v. Barber, 18 N. Y. 468 , 75 Am. Dec. 254 ; Wood v. Watkinson, 17 Conn. 500 , 44 Am. Dec. 562 . In the first case in which the decree of an inferior state court was relied on in another jurisdiction as establishing the undisputed debt necessary to the maintenance of an action, the court refused to treat the decree as final, where the appellate court in the original jurisdiction had regarded it as interlocutory merely. “No greater effect can be given to any judgment of a court of one state in another state than is given to it in the state where rendered. Any other rule would contravene the policy of the provisions of the constitution and laws of the United States on that subject.” At page 529, 17 Wall., and page 691, 21 L. Ed. “No case can be found,” say the court in Suydam v. Barber, supra, “where a greater

There being no distinction between foreign and sister state judgments as a cause of action or as a defense (Black, Judgm. § 826), we have now to examine the status of the Connecticut law. The decree of the probate judge of New Haven admitting the will of Mr. Plant to probate as the will of a resident of New Haven is conclusive here if it is conclusive there. If a collateral attack can be made upon it there, then such an attack can be made here with the resultant consequence of declaring his correct domicile as I have declared it, and of admitting his will here as that of a resident of this state at the time of his decease. The faith and credit given by law and usage by the Connecticut courts to a probate decree when attacked collaterally in the courts of Connecticut is what we must now turn our attention to. As was said in Bank v. Farnum, supra, the question is not answered by referring to general principles of law, by determining what at common law was the significance and effect of a judgment, but can be answered only by an examination of the decisions of the courts of Connecticut. It may- be said at the outset of this branch of the discussion that the defendants’ position would be well-nigh unexceptionable, were the judgment or decree one rendered in the great majority of the states of the Union. •

Let us trace the law of Connecticut on this subject. We may accept as a starting point what is there settled beyond dispute,—that the decree of a court of probate, in a matter within its jurisdiction, is as conclusive upon the parties as the judgment or decree of any other court, is invulnerable collaterally, and is subject to correction or revision only on appeal. Gates v. Treat, 17 Conn. 388 ; Judson v. Lake, 3 Day, 318 , 326; Appeal of Mix, 35 Conn. 121 , 95 Am. Dec. 222 ; Lockwood v. Sturdevant, 6 Conn. 373 . What, then, is a matter within the jurisdiction? Four cases will answer this question. They are Sears v. Terry, 26 Conn. 273 ; Bank v. Balcom, 35 Conn. 351 ; Appeal of Olmstead, 43 Conn, no; and Appeal of Culver, 48 Conn. 165 .

Sears v. Terry is the foundation case. This was an action on contract. The defendant denied liability on the ground that at the time of making the contract he was incapacitated from entering into it by virtue of the appointment by the probate court of a conservator of his person and property because of lunacy. The defendant in the lower court offered record evidence of the appointment of the conservator by the probate court for the district of Plymouth. The

“Has a court of limited and inferior jurisdiction power to determine its jurisdictional facts to the exclusion of all collateral inquiry by a person who is affected by the judgment, and who was not present”? 26 Conn., at page 280.

In answering this question the fact of the presence of the person attacking is omitted or disregarded, the court saying:

“We need not examine at length the general question whether a court that does not proceed according to the course of the common, law, hut exercises a restricted and special jurisdiction under some provisión of the statute law, can, according to the authorities, or the reason of the thing, conclusively find the facts essential to the exercise of jurisdiction. The case on trial does not, in our view, require it; still we do not hesitate to say that, after considering the authorities which have been read to us on the trial, we have a strong impression that such is not the law.”

■ The court then proceeds, by argument from principle and authority, to support this dictum, but concludes by placing its decision on the more precise ground above quoted. That ground must be held to have established for the courts of Connecticut, at least, this proposition: In the case of that limited and inferior court known as the “Probate Court,” which does not proceed according to the course of the common law, the question of domicile, declared after inquiry, and made the basis of the appointment of a conservator, can be attacked collaterally in another proceeding. Anybody relying on that judgment or decree must prove the jurisdictional facts, and disproof of them in any proceeding invalidates the court’s pronouncement.

I have examined this case at some length, because it is the foundation authority for the rule on which this decision depends. It is authority for the proposition that the decree of a court of probate may be collaterally attacked for want of jurisdiction after inquiry.

The next case in the point of time is Bank v. Balcom, supra. There the principal question was the domicile of a decedent. Her administrator claimed it was in Connecticut, as against the claim of the administrator of the estate of her husband, who claimed it was in New York. In letters taken on both estates in Connecticut, on the ground of property within that state, the decree in each proceeding described the intestate as domiciled in the state of New York. For aught that appears in the report of the case, the decree was made ex parte in each instance. A collateral attack was permitted, and the decedent’s domicile declared to be in Connecticut.

“Again, it is claimed that the court of probate for the district of New Haven granted letters of administration on the estate of Mr. Lewin as domiciled in the state of New York, and it is insisted that this is conclusive on the subject. But the judgment of a court of limited jurisdiction is never conclusive of a jurisdictional question. Its jurisdiction may always be controverted.” 35 Conn. 358 , 359.

Sears v. Terry is relied on in support of the conclusion. The important point to be here observed is that the New Haven court which granted the letters had general jurisdiction of the subject-matter,— the administration of estates,—but that nevertheless its conclusion on what the defendants term the “quasi jurisdictional fact of domicile” was held collaterally assailable. In other words, conceding that determinations on quasi jurisdictional facts would be invulnerable collaterally, the case of Bank v. Balcom is further authority for the proposition that what is elsewhere quasi jurisdictional is in Connecticut, so far, at least, as the probate court is concerned, purely jurisdictional.

The third important case is Appeal of Olmstead, 43 Conn. no. The will of one Olmstead was admitted to probate as a resident of the district of Bridgeport. Commissioners were appointed to pass upon claims against the estate. These commissioners sit as a court, and are quite independent of the probate court which appoints them, and which has no power to revise, alter, or modify their doings. An appeal from them lies not to the probate court, but directly to the superior court. Appeal of Moss, 36 Conn. 212 . The finding of the domiciliary fact by the probate court is in no wise directly before the commissioners. Any attack made in the proceedings before them is necessarily collateral, and an attack made in the superior court on an appeal from the commissioners, without any appeal from the decree of the probate court admitting the will, is purely a collateral attack on the jurisdictional finding made as to residence. In the Olmstead Case such a collateral attack was permitted and sustained. There an appeal was taken from the doings of the commissioners to the superior court on the ground, among others, that Olmstead was not a resident of the district of Bridgeport, but of that of Woodbury, and that therefore neither the probate court nor the commissioners had any jurisdiction in the settlement of the estate. In Connecticut

“It is for the interest of the court * * * to know as early as possible that it has no jurisdiction, if such be the fact. If the information does not come early, it must not be rejected if it comes late. Whenever and however it comes, it should be received as the suggestion of an amicus curise, and the proper legal action promptly taken.” 43 Conn., at pages 114, 115.

ft was urged that the commissioners could not pass upon the question of their own jurisdiction, nor upon that of the probate court, and that therefore there was no power in the superior court to consider the question. After arguing that even the commissioners would have power to entertain the collateral attack as to the fact of residence, the opinion proceeds on the concession that they have not, and yet finds the power of the superior court unaffected to entertain the attack:

“The attention of the court being called to it, one course only could be lawfully taken, that is to dismiss the case. If one party or if both parties insisted upon a judgment on the merits, it would make no difference; the court could do nothing lawfully but dismiss the case.”

The court cites with approval the rule that—

"Want of jurisdiction, especially of a court of limited and special jurisdiction, cannot be aided by any waiver of exceptions, or even by express consent. If this is true in ordinary cases, it is so a fortiori in a case of a probate court decree granting administration.”

While reasoning independently of Sears v. Terry and Bank v. Balcom, the court quoted them as recognizing the same principles.

The limitation noted on the consideration of those two cases, to the effect that the initial ■ proceedings involved in the assumption of jurisdiction were ex parte, cannot be held to obtain in the Olmstead Case, despite the defendants’ insistence to the contrary. That was not an ex parte proceeding for the appointment of an administrator, but a proceeding based on a will proved in the regular manner. The appeal was taken by William W. Olmstead, thé son of the decedent, Joseph Olmstead; and the former, according to the practice prevailing in Connecticut, as elsewhere, must have been necessarily cited on the probate proceedings. At page 123, 43 Conn., the court speaks of “the will of the decedent, Joseph Olmstead, which had been duly proved.” As heir, the appellant was necessarily cited; and in any event, under section 546, Gen. St. Conn, p. 135, being merely a re-enactment of the prevailing practice; notice of such probate proceedings must be given to all persons interested .in the estate. Obviously the appellant, William W. Olmstead,

“If the settlement of Joseph Olmstead’s estate did not by law belong to the court of probate for the district of Bridgeport, but did belong to the court of probate for the district of Woodbury, the action of the court of probate for the district of Bridgeport was utterly void, and all subsequent proceedings, whether by commissioners or otherwise, necessarily void also.”

Finally, it by no means appears, as urged by the defendants, that the collateral attack upon the probate proceeding was not made by the party who had invoked the jurisdiction of the court. Even if it were, the answer is contained in the rule, quoted with approval from Wildman v. Rider, 23 Conn. 172 , to the effect that “it was the duty of that court to dismiss the case whenever it discovered that it had no jurisdiction over it, and it was immaterial, by whom a knowledge of that fact' was communicated.” At page 176.

To sum up this analysis, then, the Olmstead Case, as I read it, is authority for these propositions: In probate proceedings, whether ex parte or otherwise, the fact of residence within the district is the fundamental jurisdictional fact, the nonexistence of which may be shown in absolute avoidance of the proceedings at any time by any person in direct or collateral attack, and that no jurisdiction vests in the superior court merely because the parties in the inferior court consented to the exercise of jurisdiction.

I come now to Appeal of Culver,—a case which further answers che objection of the defendants that after the question of domicile has been raised, and evidence has been taken, and the court has judicially determined the question of domicile, the judgment thereon rendered is everywhere proof against collateral attack. Such is the rule in New York, at least “where jurisdiction depends on a fact that is litigated in a suit, and is adjudged in favor of the party v. ho avers jurisdiction.” O’Donoghue v. Boies, 159 N. Y. 87 , 53 N. E. 537 . And so in other jurisdictions. Reinach v. Railroad Co. (C. C.) 58 Fed. 33 ; Irwin v. Scriber, 18 Cal. 499 ; Bostwick v. Skinner, 80 Ill. 147 ; Noble v. Railroad Co., 147 U. S. 165 , 13 Sup. Ct. 271 , 37 L. Ed. 123 . It is unnecessary to consider the nice question what “litigated” in a suit means, as the Culver Case is Connecticut authority for a contrary proposition, so far as the probate court is concerned. In Appeal of Culver one Adye, who had been a settled inhabitant of the town of Seymour, within the probate district of New Haven, where a conservator of his person and property had been appointed, moved into the probate district of Woodbury, with the intention of making that town his permanent home. After Adye’s death in Woodbury, the probate court for the district of New Haven appointed the appellant, Culver, administrator, on the basis of continued residence in Seymour under the conservatorship proceedings theretofore had in that district. Thereafter his will ivas offered for probate in the Woodbury district. Culver objected to the probate, put in evidence proof of his appointment as administrator in New Haven, and claimed that, under that decree, Adye’s. residence was found to be in Seymour, and that, so long as the.

“Any court has the power to decide the facts that give itself jurisdiction. Such power is essential to the existence of the court, and a finding of jurisdictional facts by any court is final, unless set aside by some regular proceeding. It cannot be treated as a nullity. The court of probate in New Haven had decided the question of Adye’s residence, and the court in Wood-bury was bound by that decision so long as it stood. That question was res adjudicata.”

The court, having stated the objection, answered it thus:

“This argument entirely ignores a well-settled distinction between judgments of courts of general jurisdiction, which cannot be collaterally attacked, unless the want of jurisdiction is apparent on the record, and judg-. ments of courts of limited and inferior jurisdiction, which can be collaterally attacked; and, if the want of jurisdiction in fact exists, the judgment is an absolute nullity.”

This statement of the rule is so unequivocal and so sweeping that it seems to me quite immaterial whether or not the assumption of jurisdiction in the first instance was ex parte or inter partes. Much time was devoted at the trial and on the briefs to showing what was the exact party status on the administration proceedings. In the points prefixed to the court’s opinion in Appeal of Culver, it is stated that all the parties were present before t’he New Haven probate court on the appointment of the administrator. From the original brief, however, used on the argument in Appeal of Culver, and offered in evidence on this trial,- it seems more likely that the reference as to the presence of all parties was-to the conservatorship proceedings. Be that as it may, the Connecticut rule seems independent of the question of parties. Where there is want of jurisdiction in a probate court, the judgment is an absolute nullity. Residence is not a quasi jurisdictional, but a jurisdictional, fact, and it is quite immaterial who asserted the fact of residence in the first instance. In the case of an inferior court of limited jurisdiction, in contrast to one of general jurisdiction, the court in which the judgment is attacked, either directly or collaterally, looks beyond and behind the consent of parties, to discover whether the jurisdictional prerequisite in fact existed; and, if it did not, the circumstances under which the judgment was rendered are ignored, and it is treated as a nullity. This I take to be the effect of the Connecticut decision. Mr. Justice Loomis, one of the most satisfactory experts examined on the trial before me, who wrote the opinion in the Culver Case, and who, it may be incidentally remarked, concurred in the Olmstead opinion, so interpreted the Connecticut authorities on the stand, and, referring particularly to the Culver Case, asserts that, in the deliberation leading to the decision therein, he and his associates

' The reason for the Connecticut rule will perhaps be better understood if the course of development of probate courts be briefly referred to. The origin of our probate courts is traced back to the ecclesiastical courts of England, the jurisdiction of which was practically limited to the probate of wills, the granting of administrations, and the suing for legacies. 3 Bl. Comm. pp. 95-98. In every other respect the control of estates, executors, and administrators was exclusively in the common law and chancery courts. As Judge Woerner puts it in his invaluable treatise, “The American Law of Administration”:

“It should therefore be remembered that there is a very great difference between the totality of the powers exercised by the English courts in connection with the administration of estates of deceased persons, sometimes called testamentary or probate jurisdiction, and the testamentary or probate jurisdiction of ecclesiastical courts,—a distinction which is of the utmost importance in ascertaining the conclusiveness of the judgments and decrees of the several classes of courts in collateral proceedings.”

Now, in this country, probate courts, since their first establishment in Massachusetts in 1784 (Rev. St. 1784, c. 46; Wales v. Willard, 2 Mass. 124 ), were patterned after the English models. But in the great majority of instances they have outgrown their limited and inferior jurisdiction as mere statutory courts deriving their sole authority from legislative enactment, and have developed into courts of record, with increased powers (proceeding according to the course of common law), and “within the field of their jurisdiction they are as much a branch of the judiciary of the state as any court of general or plenary powers. * * * Their orders, judgments, and decrees are therefore as conclusive upon the parties to the record, until reversed or annulled on appeal, writ of error, or direct proceeding in chancery for fraud, as decrees in chancery or judgments at law.” Woerner, Adm’n (2d Ed.) § 145. Connecticut, however, has

To return to the Connecticut cases: The rule I have deduced from the four cases examined has not been affected by section 436, embodied in the revision of 1887, subsequent to the date of the decision in Appeal of Culver. That section reads:

“Every order or decree of a court of probate made by a judge who is-disqualified shall be valid unless an appeal be taken therefrom, as hereinafter specified, and no order made by a court of probate upon any matter-within its jurisdiction shall be attacked collaterally except for fraud, or set. aside save by appeal.” Gen. St. Conn. 1887, tit. 13, c. 42, § 436.

That this section is but a re-enactment of the previous common law of Connecticut has been affirmatively held in Appeal of Mallory, 62 Conn. 218 , 25 Atl. 109 . And see Gallup v. Smith, 59 Conn. 354 , 361, 22 Atl. 334 , 12 L. R. A. 353 . What is a "matter within its jurisdiction” ? I think the preceding analysis has sufficiently shown that,, where the domiciliary fact does not exist, the matter is not within the court’s jurisdiction, and that under the rule prevailing in Connecticut it is quite immaterial under what circumstances the court made its-

I have examined all the cases relied on by the defendants, and find none of them in conflict with the construction I have reached. I do not deem it necessary to further lengthen this opinion by distinguishing all the cases cited in one place or other of the very extended briefs. Two principles will serve to demark them from those I have cited: Thus, where decrees have been held collaterally invulnerable, they will be found to have been rendered either in cases where the matters were within the jurisdiction of the probate court, or where they were rendered by courts of something more than special, inferior, and limited jurisdiction. Appeal of Mix, 35 Conn. 121 , 95 Am. Dec. 222 , where a probate court decree was held conclusive “upon the parties as to all matters within its jurisdiction,” may be taken as the type of the first class, into which these and other cases cited by the defendants fall. Judson v. Lake, 3 Day, 318 , 326; Lockwood v. Sturdevant, 6 Conn. 373 , 388; Holcomb v. Phelps, 16 Conn. 127 , 132; Gates v. Treat, 17 Conn. 388 ; Shelton v. Hadlock, 62 Conn. 149 , 25 Atl. 483 ; Appeal of Terry, 67 Conn. 181 , 34 Atl. 1032 . Appeal of Willetts, 50 Conn. 330 , insistently and chiefly relied on by the defendants, may be taken as the type of the second class. In that case, after an ex parte grant of letters in Connecticut, an application was made in New York to probate the will of the decedent by all the parties; and, after evidence taken, the surrogate decided that the decedent was a domiciled resident of New York at the time of her death. It is to be noted that in this state the surrogate’s court is a court of record. In holding the New York decree conclusive, the court, in Appeal of Willetts, pointedly recognizes the distinction underlying the four cases analyzed, and so clearly stated in Appeal of Culver. Certainly, even on the basis of Connecticut authorities, the decree was attack-proof, because “The judgment in New York is that of a court of record, of general

Mention should, perhaps, be made, in conclusion, of the case of Penfield v. Savage, 2 Conn. 386 , because, in the light of Appeal of Culver, it shows extremes of the law. Although not proved on the trial as one of the authorities of Connecticut, it is well to refer to it, especially in view of a recent supplemental memorandum submitted by the defendants. They refer to language in a concurring opinion to this effect:

“Every court of limited jurisdiction has a right to ascertain the facts requisite for the exercise of its jurisdiction. * * * The truth of the facts found cannot collaterally be the subject of inquiry.”

Even were this the law of the case, it would only be necessary to read the quotations herein given from Appeal of Culver, to show how completely the court had reversed itself. But the extract quoted from the opinion of Hosmer, J., whatever may be my own view as to its legal SQundness, cannot be treated as more than mere dictum. This decision was rendered in 1818, and was a case in which it was sought to hold a guardian personally liable in an action for debt on account of necessaries furnished the ward. The first opinion in the case—that of the chief judge—places the decision squarely and solely on the ground that the defendant had incurred no liability, whether she was or was not the lawful guardian of the infant. In that view, it became immaterial whether "the guardian had or had not been properly appointed in the first instance.

I have been unable to find anything in all the Connecticut authorities I have examined to alter either my construction of Sears v. Terry, Bank v. Balcom, Appeal of Olmstead, and Appeal of Culver, or my conclusion that they are to-day controlling law in the state of Connecticut. Therefore I am of the opinion that the will of Mr. Plant should be established in this jurisdiction as that of a resident of the county and state of New York at the time of his death.

Judgment accordingly.