The opinion
Mr. Chief Justice Alvey
dissenting:
I feel constrained to dissent from the opinion of the majority of the court in this case; and though I regret my inability to agree with my brothers, I shall state briefly the grounds of my dissenting opinion.
The appeal is from an order of the Supreme Court of this District holding a special term for Orphans’ Court business. The order is dated the 22d of April, 1898; and by that order a paper, declared to be the last will and testament of Hugh A. Haralson, deceased, is admitted to probate and record; and because there was no executor named in said paper, letters of administration cum testamento awnexo upon *417 the estate of the deceased, were, by said order, granted to Hugh H. Gordon.
■The facts of the case, in the order in which they occurred, are important to be borne in mind.
The deceased, Hugh A. Haralson, died in De Kalb County, in the State of Georgia, August 23, 1895. On the 14th of the same month and year, at Savannah, in the State of Georgia, the deceased executed a paper-writing purporting to be his last will and testament; but which paper was signed by the deceased in the presence of but one witness, when, by the law of Georgia, to make a will or testament valid as to personal estate, the attestation of two witnesses were required. By this paper, thus executed, the decedent attempted to dispose of certain bonds of the value of about $9,000. The legatees, to whom these bonds are given by this paper, are his sister, Mrs. Fanny H. Gordon, and his neice, Carrie L. Gordon. These bonds, at the time of the death of Haralson, were on deposit in a bank in the city of Washington,District of Columbia. The paper-writing purporting to be a last will and testament of the deceased having but one witness to its execution, was and is wholly invalid as a testamentary disposition of personal property, by the law of the State of Georgia. But, if the party executing the paper really had his domicil in this District of Columbia, at the time of his death, the paper would be valid and entitled to admission to probate here.
Upon the supposition that the deceased had his domicil here, or was a resident of this District at the time of his death, Mrs. Gordon, the legatee in the supposed will, on the 23d of January, 1896, filed her petition in the Supreme Court of this District, holding a special term for Orphans’ Court business, praying for the admission to probate and record of the alleged testamentary paper, and for the granting of letters of administration, cum testamento annexo, upon the personal estate of the deceased. By this petition, it is *418 ■alleged that the deceased, though a citizen of the State of Georgia, was, at the time of his death, and for several years prior thereto had been, a resident of the District of Columbia, and that he died in the State of Georgia, where he was temporarily engaged in the discharge of his duties as an official of the Government of the United States. It is alleged in that petition that the deceased, at the time of his death, was possessed of personal estate, consisting chiefly of bonds and stocks, of the value of about $10,000, all of which, except an insignificant part thereof, was then in the District of Columbia. The petition also names the parties who were the next of kin and distributees of the personal estate of the deceased, and all of whom were non-residents of this District, and citations were prayed to such parties.
To this notification parties interested appeared, and on the 6th of March, 1896, a caveat to the desired probate of the paper propounded as the last will and testament of the deceased was filed by and on behalf of the next of kin of the deceased, other than Mrs. Gordon; and against the probate of the paper propounded, three grounds were stated: 1st. That the said paper-writing is not the last will and testament of the deceased; 2d. That the deceased was not, at the time of his death, a resident of the District of Columbia; and, 3d. That at the time of his death the deceased was a citizen and resident of the State of Georgia.
Upon this caveat to the probate of the paper, the court, on the 10th of April, 1896, made up five issues to be sent to a court of law to be tried by a jury. These issues were: 1st. Whether the deceased was, at the time of his death, a resident of the District of Columbia? 2d. Whether the deceased was, at the time of his death, a citizen and resident of the State of Georgia? 3d. Whether the deceased was, at the time of the making of the paper-writing, propounded as his last will and testament, a resident of the District of Columbia? 4th. Whether the deceased was, at the time of the making of said paper-writing, a citizen and resident of the State of Georgia? *419 And 5fch. At the time of his death, did any considerable part of the personal estate of the deceased exist or lie within the District of Columbia? Some of these issues, ■especially the third and fourth, were not material to the question of fact upon which the validity of the paper propounded depended, because not determinate of the real question involved.
The issues thus framed were sent to the court of law to be tried, but the trial did not take place until February, 1898. The verdict of the jury was, upon the evidence submitted to them, that the deceased was, at the time of his •death, a resident of the District of Columbia, and that he was not, at that time, a citizen and resident of the State of Georgia; that the deceased, at the time of making the paper propounded as his will, was a resident of the District of Columbia, and was not, at that time, a citizen and resident of the State of Georgia; and that, at the death of the deceased, a considerable portion of his personal estate was in the District of Columbia.
This verdict was certified to the special term for Orphans’ Court business, and was made the basis of the order of the 22d of April,.1898, from which this appeal is taken.
The record shows that, on the 6th of April, 1896, just one month after the caveat filed, there was filed by Logan Bleckley, one of the next of kin of the deceased, and one of those who had filed the caveat to the probate of the paper propounded in the court in this District, a petition in the court of the Ordinary of De Kalb County, in the State of Georgia, asking for citation of the parties interested, and for letters of administration upon the personal estate of the deceased. Upon this application, at the May term of that court, 1896, an order was passed by the Ordinary, reciting the facts of the application, and that citation had been published, according to law, requiring all concerned to appear and show cause if any they could, why letters should not be granted; and, as it is declared, it appearing “ that the deceased died a. *420 resident of said county, intestate, and that said applicant is a citizen of this State, lawfully qualified for said administration, and no objection appearing to the contrary,” it was thereupon ordered, that said Logan Bleckley be appointed administrator, etc. And letters were accordingly granted..
The trial of the issues framed on the caveat did not take place until March, 1898, nearly two years after the grant of letters of administration in the State of Georgia, and more than two years after the paper had been propounded for probate. On the trial of the issues the caveatee was given the position of plaintiff on the record, and this was manifestly correct, as the onus of proof was upon her. She was required to offer affirmative proof in support of the first, third and fifth issues; and as to the second and fourth issues, the onus of proof was upon the caveators. And proceeding according to this order of proof, the caveatee offered evidence to show, according to the bill of exception, that the deceased, both at the date of the alleged testamentary paper, and at the time of his death, was a resident of the District of Columbia. And in support of the fifth issue, it was. admitted that at the time of the death of the decedent, he had on deposit in a bank, and in a loan and trust company, in this District, money and securities amounting to about $9,000, and that said money and securities constituted the entire estate of the decedent, with the exception of about $200 found outside of the District of Columbia-. It was further admitted that the money and securities so on deposit in this District, were subsequently removed from the said District by Logan Bleckley, claiming to act as administrator of the estate of the deceased, under and by virtue of the letters of administration issued to him by the Court of Ordinary in the State of Georgia. Upon this proof the caveatee rested her case..
The caveators thereupon produced and offered in evidence, to sustain the issues on their part, a duly certified transcript *421 of the record of De Kalb County Court of Ordinary, in the State of Georgia. This transcript was offered as tending to show that the deceased had died a resident of said county of De Kalb, intestate, and that the caveatee was thereby estopped to deny those facts. But the court below rejected the record in toto, and would not admit it for any purpose, and the caveators excepted. The only question, therefore, presented on this appeal is as to the admissibility of that record of the proceedings of the Court of Ordinary in the State of Georgia.
The question is an important and a delicate one, and involves many and serious consequences; and to determine the question thus presented, we must look to and consider the facts involved in the issues on trial, and the nature of the j udicial proceeding offered in evidence. It may be that the effect attributed to the judicial proceeding in Georgia, in the offer made, was too broad and conclusive, and I think it was so. But while the record may not operate as an estoppel on the question of domicil, it does not follow that it should have been rejected as furnishing no evidence whatever. The great and controlling question under the issues was, where was the real and actual domicil of the deceased at the time of his death? That question was jurisdictional in its nature, and it was the fact involved in the issues upon which the rights of the parties depended. I think the record offered in evidence was admissible as evidence in chief under issues two and four, and as evidence in rebuttal of the evidence offered by the caveatee in support of issues one and three. Treating the question of domicil as in the nature of a jurisdictional question, it would seem to follow that the judicial proceedings in the Court of Ordinary in the State of Georgia would not preclude inquiry into the jurisdiction of that court, in which the proceedings took place, over the subject-matter, or the parties affected thereby, nor into the facts necessary to give such jurisdiction, namely, *422 the fact of domicil of the decedent at the time of his death. Simmons v. Saul, 138 U. S. 439, 448 ; Thompson v. Whitman, 18 Wall. 457 ; Cole v. Cunningham, 133 U. S. 107 .
The record, however, should have been admitted, in connection with the other facts, as reflecting upon the fact of domicil of the deceased at the time of his death. For if it be true, as declared by the judicial finding of the Georgia court, that the decedent was, at the time of his death, a resident of or domiciled in the State of Georgia, then he certainly died intestate as to all his personal property, wherever situate. It is conceded that the paper-writing propounded for probate in this jurisdiction, as a testamentary instrument, has no validity whatever by the law of the State of Georgia; and it is also conceded that before the instrument was admitted to probate here and annexed to letters of administration, all the personal property belonging to the estate of the deceased had been removed from this jurisdiction and taken to the State of Georgia by the administrator appointed there; so that there was no property whatever in this jurisdiction upon which the supposed testamentary paper and the letters of administration granted here could-operate. And upon the assumption that the domicil of the deceased at the time of his death was in Georgia, the claim-to and removal of such bonds, money, or securities, by the Georgia administrator, w'ere in all respects lawful and proper. Act of Congress, February 28, 1887 ( 24 Stat. 431 ); Wilkins v. Ellett, 9 Wall. 740 ; Wyman v. Halstead, 109 U. S. 654, 656 ; Parsons v. Lyman, 20 N. Y. 103 . It is a principle well settled that where there are no debts due from the estate in-the jurisdiction where a foreign debtor of the estate resides,, and no ancilliary administration has been granted thei’e, the principal administrator may, in such foreign State, receive a voluntary payment from the debtor, which will be a good, discharge of the debt, even if an ancillary administrator should be afterwards appointed. Wilkins v. Ellett, 9 Wall. 740 ; Mackey v. Coxe, 18 How. 100, 104 ; Wyman v. Halstead, supra. Nor *423 did the fact of the pendency of the issues formed on the caveat to the alleged testamentary paper, involving the question of the residence or domicil of the decedent in this District, or the paper after it had been admitted to probate here, with letters of administration,affect in any manner the right of the foreign administrator, as to acts done and rights attached before probate obtained. He derived his author-, ity from a competent jurisdiction, and that authority he was entitled to have respected by the courts of this jurisdiction, both by express provision of statute, and by the comity of States. The subsequent probate of the paper and the grant of letters of administration here will not have the effect of vacating the letters of administration granted in Georgia, or of divesting the administrator in that State of the funds that he lawfully received and removed from this District; that was a lawful act done by him by virtue of a competent authority derived from the court of Ordinary in Georgia. Schluter v. Bowery Saving Bank, 117 N. Y. 125 . If the deceased was in fact domiciled in the State of Georgia at the time of his death, as he was found and declared to have been by a court of competent jurisdiction in that State, then the probate of the paper in this District was wholly without effect and operation, even as to the bonds and securities mentioned in the paper. For it is now a settled principle in the jurisprudence of this country, as it is in the jurisprudence of England, that the succession to and distribution of personal property is regulated by the law of the owner’s domicil, and not by the lex loci rei sites; and that a will of personal estate must, in order to pass the property, be executed according to the law of the place of the testator’s domicil at the time of his death. This principle appears to have been first definitely laid down in this country in the case of Deserbats v. Beiquiers, 1 Binney, 336. In that case, a foreign testator, domiciled abroad, had made a will of his personal estate, invalid according to the law of his domicil, but valid according to the law of Pennsylvania; and the question was, *424 whether it was competent and valid to pass personal property situate in Pennsylvania. This question was much considered, but the court held that the paper was not valid and effectual to pass personal property situated in Pennsylvania; and laid down the general doctrine, that a will of personal property must, in order to pass the property, be executed according to the law of the place of the testator’s domicil at the time of his death. If void by that law, it is a nullity everywhere, although it is executed with the formalities required by the law of the place where the personal property is locally situate. The court, in that case, assert what has been repeatedly held in subsequent cases, that, in respect to the controlling effect of the domicil, there is no difference between cases of succession by testament, and by intestacy. 1 Sto. Confl. Laws, Sec. 468, and cases cited.
In the case of Whicker v. Hume, 7 H. Lo. Cas. 124, the questions involved- in this case were very fully considered, both at the bar and by the court. In that case the testator had died in Paris, where he had lived for some time, and he made his will there, but he made it in English form, and it was admitted to probate in England. One, of the questions much considered was, at what place the testator really had his domicil at the time of his death—whether in France, in Scotland, or in England, as he had lived in all three countries. It was concluded upon the facts, that he was domiciled in England at the time of his death. And the general doctrine was laid down and maintained, that a will to be valid must be executed according to the law of the country where the testator was domiciled at the time of his death; and that while the grant of probate, not vacated on appeal, conclusively establishes that the will was so executed, yet it does not conclude on the question of domicil. In that case there were several opinions delivered, and the law lords all concurred in maintaining the general principle, that the maxim, mobilia sequuntur personam, is part of the jus gentium, and, therefore, that the post mortuary distribu *425 tion of the effects of a deceased person must be made according to the law of his domicil at the time of his death; and, consequently, if the law of the country allowed the deceased to make a will, that will must be made as that law requires.
The Lord Chancellor (Chelmsford), after stating some of the general features of the case said: “I apprehend, that this will having been admitted to probate, it must be taken to be a valid will wherever it shall turn out that the testator was residing at the time of his death, but that the place of domicil is ■ still open for consideration, and also the validity of the bequest contained in the will, and the effect of it according to the*law of the domicil of the testator. The question, therefore, being open for consideration as to where the testator was domiciled at the time of his death, it' will be necessary to enter shortly into the consideration of the evidence upon that subject.”
Lord Cranworth, in his opinion, said: “The first question made is one that was extremely important, namely, the point, whether probate was or was not conclusive evidence of the domicil. Now, I have no hesitation in saying that the affirmative of that proposition can not be a correct exposition of the law. A probate is conclusive evidence that the instrument proved was testamentary according to the law of this country. But it proves nothing else. That may be illustrated in this way. Suppose there was a country in which the form of a will was exactly similar to that in this country, but in which no person could give away more than half his property. Such an instrument made in that country by a person there domiciled, when brought to probate here, would be admitted to probate as a matter of course. Probate would be conclusive that it was testamentary, but it would be conclusive of nothing more, for after that there would then arise the question, how is the court that is to administer the property to ascertain who is entitled to it? For that purpose you must look beyond the *426 probate to know in what country the testator was domiciled, for, by the law of the country the property must be administered. Therefore,^if the testator, in the case I have supposed, had given away all his property,consisting of £10,000, it would be the duty of the court that had to construe the will to say £5,000 only can go according to the direction of the will, and the other £5,000 must go in some other channel. Therefore, I think it is clear that that proposition is one that can not be maintained.”
And Lord Wensleydale, while giving his own definition as to what constitutes domicil of a testator, said: “I take it to be a perfectly clearly established proposition at this day, confirmed by the case of Stanley v. Bernes, 3 Hagg. Eccl. R. 373, that the succession must be regulated according to the law of that country where the deceased was domiciled at the time of his death, and that to make a valid will it must be executed according to the forms of the law of that country.”
As I have already stated, it is freely conceded by the appellee that the paper produced here for probate is wholly void and without effect by the law of the State of Georgia, because not attested by more than one witness. But if it be true, that the deceased was, at the time of his death, domiciled in this District, then the paper, though attested by one witness only, is a good and valid testamentary paper, and is therefore entitled to be admitted to probate here. The important question, therefore, to be determined on the trial of the issues framed on the caveat to the paper was the question of domicil of the deceased, at the time of his death— whether in the State of Georgia or in this District of Columbia. I am of opinion that the Georgia record of the grant of administration in that jurisdiction ought to have been admitted in evidence to the jury, in connection with the conceded facts that the deceased was a citizen of Georgia, that the paper in contest was executed in that State, and that the deceased died in that State soon after the paper was made.
*427 But, as the case has been decided by the court below, and affirmed by a majority of this court, the question will arise, what practical effect can be given to the probate and letters of administration that have been granted here? There is, as we have seen, an antecedent administration in the State of Georgia, founded upon the alleged domicil or residence of the deceased in that State at the time of his death, and that he died intestate; and moreover, all the property that the supposed testamentary paper and letters of administration granted here, could affect or operate upon, has been, under the sanction of law and authority, withdrawn and taken to the jurisdiction of the original or first administration. It is hardly supposable that the courts of Georgia will give effect to the probate of the paper and letters of administration granted here regardless of their own local administration. It is well settled by the courts of that State, that the courts of Ordinary there are courts of original, exclusive and general jurisdiction over decedents’ estates, and the subject-matter of their orders and judgments are no more open to collateral attack than the judgments, decrees or orders of any other court. Veach v. Rice, 131 U. S. 293, 314 ; Davie v. McDaniel, 47 Ga. 195 ; Barnes v. Underwood, 54 Ga. 87 ; Arnold v. Arnold, 62 Ga. 627 ; Tant v. Wright, 65 Ga. 412 . The case, therefore, necessarily presents, or will .present, an unfortunate conflict of law and jurisdiction, and the only hope is that the Supreme Court of the United States, if the case should reach that tribunal, may find a way of overcoming the difficulty.