By our statutes, cited by my brother LADD, and which, therefore, need not be cited again, the jurisdiction of the probate of wills is in the county where the testator was domiciled at the time of his death. It is also provided that a copy of a will, proved in a foreign jurisdiction, may, on notice to parties interested, and due hearing, if no sufficient objection appears, be filed in the office of the probate court, and that such ruling shall have the effect of a probate.
The court below having ordered the will under consideration to be so filed, an appeal is taken from that decree; and the question to be tried is, whether there is a sufficient objection to the decree.
The appellant alleges that the domicile of the testatrix, at the time of her decease, was in Hillsborough county, and that therefore, by our law, the jurisdiction of the probate of that will was in the probate court of Hillsborough county.
Now, if this be so, it is obvious that the will must be proved in Hillsborough county, in order to give it any validity in regard to the property of the testatrix situated in this state. Undoubtedly our law, permitting wills proved in foreign jurisdictions to be filed, intends wills proved by courts having jurisdiction over their probate. It is not claimed that the court before whom the will was proved in Canada has the jurisdiction, unless the testatrix was domiciled there at the time of her decease; so that this question of domicile is all-important in the case.
Now, I understand the position taken by the appellee to be, that the foreign probate court having assumed to try the facts upon which its jurisdiction depended, that fact must be taken to be conclusively settled, and cannot now be inquired into; and this brings us to the question, which I suppose is intended to be made in this case, viz., whether the foreign court, having, as appears by its record, determined the question of jurisdiction in its own favor, that question is conclusively settled against this appellant, and against the jurisdiction of this court.
In the case of People v. Dawell, 25 Mich. 247, the question arose on the validity of a divorce which had been obtained in the state of Indiana. It was alleged that the divorce had been obtained by fraud, and I understand it to have been conceded by the court, that, if the court *Page 487 in Indiana had jurisdiction over the parties, the court of Michigan could not treat the divorce as a nullity until it had been vacated by proper proceedings in the court of Indiana. But the court also held, that the facts on which the jurisdiction over the parties depended might be inquired into and, on its being established that the parties were both domiciled in Michigan at the time of the divorce, they disregarded it; and the respondent, Dawell, was convicted of bigamy.
The case of Hoffman v. Hoffman, 46 N.Y. 30, is to the same effect. There, the proceedings appeared on the face of the record regular, and the plaintiff had failed in her attempt to set aside the divorce in the court of Indiana; but the court in New York inquired into the facts on which the jurisdiction of the court in Indiana depended, and it appearing that the parties were domiciled in New York at the time of the divorce, the court held that it was void.
These cases seem peculiarly apposite, because the proceedings in divorce are, like the probate of wills, in the nature of proceedings in rem. It appears to me, that whatever may be the law in regard to the effect of a determination of a court of the facts on which its jurisdiction depends in its own country, they show conclusively that foreign jurisdictions can no way be so bound.
I hold, therefore, that the appellant here is entitled to have the facts on which the jurisdiction depends tried by a jury.