In re Campbell's Estate , 53 Utah 487 ( 1918 )

FRICK, C. J.

(dissenting).

If the conclusions of the majority of this court were based upon the proposition that, in view of the undisputed facts of this case, the affirmance of the judgment could not result in any injury to any one interested in the estate and as giving to Mrs. Stanley, one of the legatees under the will, what she ultimately would be entitled to from the estate, I should readily concur in the affirmance of the judgment. The decision, however, is so broad and sweeping, and withal asserts a number of propositions in which I 'cannot agree, that I feel impelled to dissent so far as those propositions are concerned.

For example, the majority make no distinction whatever between the rights of a creditor who has claims against an estate and those of a legatee claiming under the will. It is broadly asserted that the claims of a legatee who claims under the will should be protected the same as those of a creditor by the court of ancillary probate, and many cases are cited which, it is contended, support the proposition. While I have no quarrel with the decisions that are cited, and, likewise, to a limited extent at least, concur in the proposition that á court of ancillary probate should protect the rights of both the legatee and the creditor, yet I cannot concur in the proposition as broadly as it is stated in the majority opinion. It should be remembered that the rights of a creditor who prefers a claim against an estate are not at all dependent upon the provisions of'the testator’s • will. Indeed, the creditor’s claims, if found valid, must be satisfied, out of the estate, regardless of whether anything remains for the legatee or not. Upon the other hand, the rights of the legatee depend entirely upon the provisions of the will. If his rights under the will fail, he has none. If, therefore, there is a dispute between different legatees, or between certain classes of legatees, if the will divides them into classes, and a question respecting the rights of a particular legatee, or of a particular class, arises which can only be determined by a construction of the several provisions of the will, then, I contend, the only court that can finally construe the provisions of the will and determine the rights of the claimants under it is the court of domiciliary probate. The meaning and effect of the will must be the same in all states and in all places so far as the rights of legatees claiming under it are concerned. If, therefore, the provisions of the will are doubtful, and the rights of the claimants under it are in dispute, the court of domiciliary probate must determine and settle the rights of the disputants if the claimants under the will or the executor insists upon it. It is self-evident that, in case of dispute between the legatees-respecting their rights under the will, some court must determine and fix what those rights are. Where the testator leaves property in but one state or jurisdiction, no difficulty ordinarily arises respecting the court by which the will must be construed and the rights of the claimants under it determined. Where, however, as here, the testator leaves property in at least three states, and there is a dispute respecting the rights of certain legatees to a certain fund or bequest, there is, there logically can be, but one court who possesses the right to construe the will and to settle the dispute, and that must be the' court of domiciliary probate. Under any other rule, the will of a testator might be held to mean one thing in one jurisdiction or state and a different thing in another jurisdiction or state. One legatee living in one state might thus be awarded a bequest, or a part of a bequest, belonging to another living in another state. Chaos and disorder would be the inevitable result.

I am in thorough sympathy with the proposition that the courts of the state in which some of the property of the testator is located should protect the rights of the legatees who are domiciled in such state. Where, however, as here, a dispute respecting the meaning of the will, and hence respecting the rights of, the legatees under it, exists, then, in my judgment, the courts of ancillary probate should not order a distribution of any part of the estate until the rights of the legatees are determined by the court of domiciliary probate. Of course, in actions to settle disputes respecting real property the title to which is based upon a will, the courts of the state in which the real estate is located necessarily must be called upon to construe the will. In such actions it is quite possible that the courts of different states may disagree respecting the meaning of certain provisions of a will, the same as they may disagree respecting the different stipulations of contracts and the different provisions of a statute. In such cases, however, those are the only courts upon whom is conferred the power and jurisdiction to adjudicate the title which may be in question. That is quite a different matter, however, from construing the provisions of a will for the purpose of determining the rights of legatees under it. In the latter class of cases the power and jurisdiction to order final distribution among the legatees devolves upon the court of domiciliary probate. Courts of ancillary probate should, therefore, wait until the rights of the legatees are determined and fixed. No injury can possibly result from following such a course, since the court of ancillary probate may easily protect the rights of any legatee by ordering the property retained in the state of ancillary probate until the rights of the claimants under the will are fully determined. If, however, the court of ancillary probate undertakes to construe the will for the purpose of determining the rights of a particular legatee under it whose rights are in dispute, injustice may easily result. For example, the executor of-a will.must ultimately report to the court of domiciliary probate and his accounts must be approved by that court. If, therefore, that court should find that the executor had paid out the funds of the estate to a legatee in another state who was not entitled thereto, the court would refuse to approve the executor’s accounts, and he and his bondsmen might thus be prejudiced. Where, as in the numerous cases cited and relied on by the majority, no construction of the will is necessary and, no dispute exists between the claimants under it, then there is no legal obstacle in the way of the court of ancillary probate to order distribution of chat portion of the property which is within the state of ancillary probate, to such of the legatees as may be found to be entitled to it. We have no such case here, however. Here the executrix contends that under the provisions of the will the fund of which Mrs. Stanley desires partial distribution belongs to the residuary legatees; that is, to a different class of legatees. The majority, however, insist that the claim of the executrix is not well founded. If that be conceded, yet it is not for me, nor for this court, to determine. The right to determine that question belongs to the court of domiciliary probate, and that court may or may not a,gree with our construction of the will. Neither is it material whether the conclusions of that court, in our judgment, are sound or unsound. That court having the right to determine, its determination is final and binding upon all other courts. The majority opinion, as I read it, however, is to the effect that it is wholly immaterial whether the court of domiciliary probate agrees or disagrees with our éonstruetion. To that extent, in my judgment, the opinion of the majority is erroneous.

While I concur in the views expressed by Mr. Justice GIDEON, yet I felt it my duty to more particularly state the precise reasons for, and the extent of, my dissent.