Gillette v. Stewart , 108 Conn. 611 ( 1929 )

As pointed out in the foregoing opinion, the facts alleged in the complaint indicate that the nature of the rights in the remainders created by the second paragraph of the will of Alice Buck may very likely have been determined in the course of the judicial proceedings in Massachusetts, and if that be so, the decision there made would be conclusive upon us; Uterhart v. United States,240 U.S. 598, 603, 36 Sup. Ct. 417; In re Trufort, L. R. 36 Ch. Div. 600, 611; 2 Wharton on Conflict of Laws (3d Ed.) p. 1357; 1 Woerner on American Law of Administration (3d Ed.) p. 553; we would not be justified in determining the effect of the provisions of that paragraph in this action lacking definite information as to this matter. I also agree that the question as to the rights of those named in that paragraph to take the remainder interests in the property bequeathed may not properly be determined in an action to construe the will of Augusta P. Gillette. Crosgrove v.Crosgrove, 69 Conn. 416, 423, 34 A. 219; Montignani v. Blade, 145 N.Y. 111, 125, 39 N.E. 719. My difficulty arises out of that portion of the opinion which deals with the right of the courts of this State to construe the will of a testator who died domiciled in another State. As I read the opinion, it seems to limit that right to situations where the interests of creditors in this State may be affected, or to the other situations suggested in it, or, at least, to some situation which affords ground for an exception to a supposed general rule which denies that right. It is no doubt true that the laws of the domicil of a testator will ordinarily determine the construction of a will bequeathing personal property, although perhaps a distinction must sometimes be made between a construction which seeks merely to ascertain the actual intent of a testator and one designed to determine the effect to be given to a certain testamentary provision. Note, 2 L.R.A. (N.S.) 443, 453. If, however, facts are present which would be necessary to give a court in this State jurisdiction of an action, we are not precluded from construing such a will by reason of the fact that we would be obliged to apply the law of the testator's domicil. We often are called upon to determine rights upon the basis of the laws of another State; witness, for example, the recent case of Tuttle v. Jockmus,106 Conn. 683, 138 A. 804. As applied to the construction of a will, the situation is well stated in Dammert v. Osborn, 140 N.Y. 30, 45, 35 N.E. 407, where it is said: "The contention of the Sociedad seems to be that the bequest is not one which would be recognized as valid in a domestic will, and, therefore, our courts should construe the will, and adjudge it to be entitled to the fund. This position is based upon a misapprehension in regard to the true nature and character of the jurisdiction which courts have long been accustomed to exercise in such cases. Our courts cannot confer title to personal property under a foreign will, upon a claimant here, otherwise than in accordance with the law of the country where the owner was domiciled when he made the will. That law must first determine where the title goes. We may adopt our own methods of ascertaining by proof, or otherwise, what the foreign law is, as a question of fact, but once ascertained, it must be applied in determining the rights of parties who have invoked the jurisdiction of our courts for the settlement of their claims to the property." In In re Trufort, L. R. 36 Ch. Div. 600, 611, the law of England is thus summed up: "The rule to be extracted from these cases appears to be this, that although the parties claiming to be entitled to the estate of a deceased person may not be bound to resort to the tribunals of the country in which the deceased was domiciled, and although the courts of this country may be called upon to administer the estate of a deceased person domiciled abroad, and in such case may be bound to ascertain as best they can who, according to the law of domicil, are entitled to that estate, yet where the title has been adjudicated upon by the courts of the domicil, such adjudication is binding upon, and must be followed by the courts of this country." In addition to the English cases cited in this opinion, see also Yates v. Thomson, 3 Clark Fin. 544, 1 Shaw McL. 795. In Welch v.Adams, 152 Mass. 74, 25 N.E. 34, the Massachusetts court entertained a suit for the construction of the will of a testator who died domiciled in New Hampshire, where all the parties interested under the will were parties to the proceeding, and the personal property involved was within the jurisdiction of the court, saying (p. 78): "Under such circumstances, it does not constitute a valid objection to the giving of instructions, that the testator was domiciled in another State, or that his will was originally proved there. If it be urged that the Probate Court may yet, in the exercise of its discretion, order the personal property to be transmitted to New Hampshire, and thus that any instructions which we might give would become inoperative, it is sufficient to say that it is not to be presumed that it would do so when all the circumstances exist which render the disposition of the property, so far as the legatees are concerned, more appropriate here than elsewhere, and when important rights of opposing parties have here been settled upon full notice, especially so when any order for this transfer of the funds would be subject to review by this court sitting as the Supreme Court of Probate." In McCurdy v. McCallum, 186 Mass. 464, 72 N.E. 75, the Massachusetts court construed the will of a testator domiciled in Nova Scotia, and in Radford v. Fidelity Columbia Trust Co., 185 Ky. 453, 215 S.W. 285, the Kentucky court construed the will of a testator who died domiciled in Indiana. In In re Campbell's Estate,53 Utah, 487, 173 P. 688, the question is discussed at length and the right of the Utah court to construe the will of a testator who died domiciled in California was upheld, two judges dissenting. In accordance with these authorities, it is my understanding that where facts necessary to give jurisdiction of an action are present, and the court of the domicil of a testator has not construed his will, there is no principle of law which forbids us to do so.

In this opinion HAINES, J., concurred.