The appellee, Edward D. L. Parker, presented his petition in the probate court for this county for leave to file in the probate office an authenticated copy of the will and codicil of Bridget Parker, the testatrix (who died in Canada), and of the probate of the same in that dominion. From the decree of the probate court granting this petition, Patrick Stark appealed; and the grounds of his appeal are, that the domicile of the testatrix, at the time of her decease, was in Manchester, and not in Canada, and, therefore. that the original will should be presented here for probate instead of in Canada.
The appellant claims that when the testator is a resident of this state, but dies beyond its limits during a temporary absence, his original will must be presented here for probate; that it cannot be probated in the state or country where he dies, and a copy of the will and of the probate thereof be brought here and filed, so as to have any effect.
In support of this position we are cited to the code of probate laws which have been in force in this state since February 3, 1789, without substantial change, as at present embodied in the General statutes of 1867. The general rule as to jurisdiction in the probate of wills, and everything pertaining to the settlement of estates, undoubtedly is as claimed by the appellant, — that it is primarily exclusive in the probate court for the district in which the testator had his domicile at the time of his decease. 2 Red. on Wills., ch. 1, sec. 2. I am not prepared to admit that our statutes are now, or that they ever have been, in conflict with a rule of such universal acceptance. On the contrary, it *Page 488 seems clear that when the provisions are all considered together, their meaning is quite plain, — (1) that the will of every person deceased, whose domicile at the time of his decease was in this state, must be presented here for probate; and (2) that an authenticated copy of the will of a deceased person, proved in the country or state where he had his domicile at the time of his decease, according to the laws thereof, may, within copy of the probate thereof, be filed in the probate office in any county in this state, after a hearing and decree, where the deceased left property upon which the will might operate, and the will will thereupon operate upon the property so found in this state.
The appellee, however, contends that if, upon an issue submitted to a jury, they should find that the domicile of the testatrix at the time of her decease was in this state, the verdict could not produce any effective result. In the argument, his counsel inquired, — "Suppose, upon application to the court in Canada for the will, that court should coincide with the judge of probate from whose finding Mr. Stark has appealed: what is to be done?" As that question is not now before us, it need not be now decided. Very likely, however, the result might be, that, unless Mr. Parker should produce the will here, where by our statutes it must be presented for probate, if the jury should find the domicile of the testatrix was here, or if he has so conducted that he cannot produce it, then it could not be set up in this state, and the estate of the testatrix would be administered as though she had died intestate.
I think the demand of the appellant, that the question of domicile be tried by a jury, should be granted.
Appeal sustained.
An issue was accordingly framed, and sent to the circuit court for trial by a jury.