
    Rufus H. Converse et al. v. Charles C. Starr, Adm’r, etc., et al.
    1. The will of a person whose domicile, at the time of his death, is in. this state, is properly admitted to original probate at the place of such domicile, without regard to where the will was made, or where such person died.
    
      2. On the trial of the issue, in a suit to contest the validity of a will, errors- or irregularities of the probate court in admitting the will to probate can not be inquired into. The prima facie effect which the statute-gives to the order of probate, can only be overcome by showing that the will is, in fact, invalid.
    
      3. Where a will is admitted to probate on the ground that the original will has been destroyed, the omission of the record to state that the destruction of the original will was subsequent to the death of the testator, does not render the order admitting such will to probate void; and on the trial of the issue, in a suit to contest the validity of such will, such order is entitled to the same prima facie effect, as the statute gives to an order probating an original will.
    Motion for leave to file petition in error to reverse the judgment of the District Court of Lucas county.
    The original suit was instituted in the Court of Common Pleas of Lucas county, by the plaintiffs in error, to contest the will of one Lucy C. Moore, which had been admitted to probate by the probate court of 'said county.
    The petition alleges the death of said Lucy C. Moore to have occurred on the 2d of May, 1867, and that, on the 13th of July, 1869, a paper writing claimed to be the last will of said Lucy C. Moore was admitted to probate in the probate court of said county, and that letters of administration, with the will annexed, were issued thereon to said Starr, who is proceeding to enforce said will, in disregard of the statute law of descent and distribution, against the right of the heirs aforesaid, and in favor of the supposed legatees; and that the paper writing so admitted to probate is not the last will of said Lucy C. Moore; and prays that defendants be brought into court; that an issue be made to try the validity of the alleged will; that the order of probate and will be held for naught, and for further relief.
    Hannah and Maria Trout, who were named as legatees, answered, alleging the writing in question to be the valid will of said Lucy C. Moore.
    The trial in the Commom Pleas having resulted in a verdict against the validity of the will, the case was taken by appeal to the District Court, where it came on for trial at the April term, 1873. This trial resulted in a verdict and judgment establishing the will.
    On the trial a bill of exceptions was taken by the plaintiffs, from which it appears the defendants offered in evidence a transcript of the records of the proceedings of the probate court, in admitting said will to probate.
    From this transcript it appears that, on the 13th day of' July, 1869, O. E. France presented to the court for probate a copy of what purported to be the last will and testament of Lucy C. Moore, deceased, and that on it appearing to-the court that the subscribing witnesses to said will were residents of Laporte, Indiana, it was ordered that William B. Biddle, Esq., of said place, be appointed commissioner, and authorized as required by law in such cases, to take the testimony of said witnesses, and report the same to the-court. That on the 6th day of August following, the commission issued to said Biddle was returned, together with the testimony of the subscribing witnesses to said will.. The record then proceeds as follows: “ And it appearing to the court that the original will had been destroyed, and. that the copy here offered for probate is a true transcript of the original will, and it further appearing to the court that the said testatrix, at the time of the execution of said will,. was of full age and of sound mind and memory, and that said will was duly executed and witnessed, it is therefore ordered by the court that said will be admitted to probate-in this court, as the last will and testament, of Lucy O. Moore, and as a will having reference to personal and real estate.” Then follows a copy of the will.
    To the introduction of said transcript, plaintiffs objected,. and offered to prove facts tending to show alleged want of jurisdiction in said probate court to entertain the question of admitting said will to record, in this:
    1. That said alleged will, purporting to have been made on the 5th day of April, 1867, at Laporte, in the State of Indiana, had never been probated in that state.
    2. That the statute law of that state in relation to wills, and in force from 1852 to April 9, 1871, was as is set forth in the bill of exceptions.
    3. Plaintiffs also offered to prove that the testimony taken in proof of said will and used in said probate court for that purpose, was taken under the commission issued by said probate court to one "William B. Biddle, of Laporte, Indiana, who was, before the taking out of said commission, and continued to be from August, 1867, until April 10, 1871, the attorney of said legatees, at said Laporte, retained by them to sustain said will, and that he sent or delivered said will to the attorney of said legatees in said county, with instructions to have said will probated in said county. That said attorney in Lucas moved said probate court fora commission to take testimony at said Laporte to prove the execution of said will, and that thereupon said court appointed said Biddle commissioner to take said testimony, and issued to him the commission, without interrogatories, under which commission said Biddle proceeded to act, and took the testimony attached to said commission, and that, upon that testimony and no other, said probate court made said order admitting said will to probate.
    The court overruled the plaintiffs’ objection to the admissibility of said transcript, on said evidence tendered to show want of jurisdiction, and admitted said transcript to go to the jury “as prima facie evidence of the execution of said will.”
    To which ruling the plaintiffs excepted.
    The plaintiffs then, to maintain the issue on their part, gave evidence tending to prove that the alleged testatrix went to Indiana from Ohio, with her effects, in September, 1866, and remained there until she removed, with said effects, from Laporte aforesaid to Jefferson county, New York, about the middle of April, 1867, and that she died in said Jefferson county on the 2d day of May, 1867.
    They also gave evidence tending to prove that said testatrix was a monomaniac on the subject of making wills '.and was otherwise mentally unsound, and was subject to undue influence in behalf of said legatees at the time of making said will, and there rested their evidence.
    The defendants further to maintain the issue on their paid, gave evidence tending to prove the requisite mental -capacity on the part of the testatrix, and that she was of sound mind and memory and not subject to undue influence at the time of making said will.
    The defendants also offered evidence tending to show that said testatrix resided several years in Lucas county, where she purchased a lot, upon which she erected a house, which she owned at the time of her death, and that in September, 1866, she went from Lucas county, Ohio, to Indiana (for a temporary purpose) then, being sick with a cancer, which sickness rapidly increased, until the time she made the will in question, at which time her death was evidently near at hand, and on the 11th of April 1867, she was taken by her sister, one of the plaintiffs, to the house of said sister in New York, where she died May 2, 1867.
    The evidence being closed, the court charged the jury that said transcript from the probate court must be taken and stand as prima faeie evidence of the due execution of said will, to which the plaintiffs excepted.
    The bill of exceptions contains no other part of the charge.
    There are other matters contained in the bill of exceptions, which it is deemed unnecessary to notice.
    
      C. W. & A. S. Hill and C. Dodge, for the motion:
    I. The evidence to show want of jurisdiction in the probate court should have been admitted. Sheldon v. Newton, 3 Ohio St. 494.
    The proceedings in that court were ex parte, hence they do not bind the contestants. Hathaway’s will case, 4 Ohio St. 383; 1 Greenl. Ev., sec. 522-524; Vose v. Morton, 4 Cush. 31; Bailey v. Bailey, 8 Ohio, 247; 12 Ohio St. 635, 644-646; Morningstar v. Selby, 15 Ohio, 345, 364; Jones v. Robinson, 17 Ohio St. 171, 182.
    II. The transcript from the probate court setting out the evidence taken under the commission and the probate court, was not admissible in evidence, because—
    1. That court could not issue a commission to prove the will of a testatrix not domiciled in Ohio at the time of he? decease.
    
      2. The commissioner was the attorney of the party seeking to prove the will. S. & C. 1617; 1 Root, 226; 2 Penn. 200; 1 Ib. 454; 5 Conn. 323; 2 Greenl. 408; 5 N. H. 94; 11 Mass. 229; 11 Jurist, 200.
    3. The testimony was not taken upon written interrogatories. S. & C. 1042, sec. 343.
    The objection to the admission of said transcript was in time. 1 Greenl. Ev., sec. 423; Vose v. Morton, 4 Cush. 31; Selway v. Chapel, 12 Simmons, 113; Talbot v. Clark, 8 Pick. 55; U. S. v. One Case of Pencils, 1 Payne, 400; Niles v. Brockett, 15 Mass. 378; Rogers v. Dibble, 3 Paige, 238; Gregory v. C. C. & C. R. R., 4 Ohio St. 675, 678.
    III. The court erred in holding the will legally probated-in Ohio, without first having been probated in Indiana. 66 Ohio L. 4; S. & C. 1626, see. 52; Manuel v. Manuel, 13 Ohio St. 458, 463, 471.
    IV. The court erred in refusing to withdraw the transcript from the jury
    It disclosed the fact that the original will had been., «destroyed, but there was no finding that it was destroyed after the death of Mrs. Moore. 64 Ohio L. 20; S. & S. 928, sec. 1; Mary Sinclair’s will, 5 Ohio St. 290.
    V. The court erred in admitting the depositions of the subscribing witnesses taken February 20 and March 13, 1872. The alleged will was executed in 1867. The proceedings in the probate court were void for want of jurisdiction ; and more than three years having elapsed in August,. 1870, section 32, S. & C. 1621, must apply.
    VI. The court erred in charging the jury that the transcript from the probate court “ must be taken and stand as prima facie evidence of the due execution of the will.”' 64 Ohio L. 20, sec. 47; 5 Ohio St. 290.
    Under the facts in this case, said transcript was not such prima facie evidence
    W. Baker and C. F. France, contra:
    The plaintiffs, by filing a petition to contest the will, mnder the statute, admit that the will has been admitted to-probate, and they can not, therefore, deny the jurisdiction! of the probate court.
    If the admission to probate is a nullify, there can be no-contest under the statute.
    But it is valid until reversed. Lagrange v. Ward, 11 Ohio, 257; 12 Ohio St. 450; Holt v. Lamb, 17 Ohio St. 385.
    This court can not, in this case, inquire upon what evidence the probate court acted. 11 Ohio, 257. The record, shows that Mrs Converse, the active contestant, was present in that court resisting the probate of the will. Her remedy was a proceeding to reverse the order then made. Walker v. Walker, 14 Ohio St. 157; Holman v. Riddle, 8 Ohio St. 384.
    The Common Pleas rightly admitted the depositions of the subscribing witnesses, taken in 1870. Mears v. Mears, 15 Ohio St. 90; Bradford v. Andrews, 20 Ib. 208.
   White, C. J.

For the purposes of this case, it may be-assumed that Lucy C. Moore, the testatrix, had her domicile, at the time of her decease, in Lucas county, in this state,, where her will was admitted to probate. Evidence was introduced by the plaintiffs tending to show that she changed her domicile when she went to Indiana, and that she acquired a domicile in that state; but the defendants below gave-counter-evidence on this point tending to show that she left-the place of her domicile in this state for a temporary purpose, and that her death occurred during such temporary absence. No objection was taken to the charge on this-this point. The presumption is, the jury were properly instructed, and that their finding is in accordance with the-evidence. If it be considered, therefore, for the purposes-of this case, that the original probate of a will must be at the place of the testator’s domicile, the presumption arising-on this record, is that such was found to be the fact, by the jury in this case.

The points made in argument for the plaintiffs in error,, may be reduced to three propositions :

1. That a will, made out of this state can not be admitted to original probate in this state.

2. That the errors and irregularities of the probate court in admitting a will to probate may be inquired into, on the trial of the issue in a suit contesting such will, for the purpose of invalidating the order of probate.

3. That the order admitting the will in question to probate can not be regarded as prima facie evidence of the due execution and validity of the will.

Neither of these propositions is tenable. In regard to the first, it is claimed that a will made in another state is, within the meaning of the act relating to wills, a foreign will, and is required to be first probated in the state where made; but such is clearly not the law. The will of a person whose domicile, at the time of his death, is in this state, is a domestic will, and properly admitted to original probate at the place of such domicile, without regard to where the will was made or where such person died. Manuel v. Manuel, 13 Ohio St. 559; Story’s Conflict of Laws, secs. 467, 468.

In regard to the second proposition, it is to be remarked that it is founded upon a misconception of the jurisdiction of the court in trying the contest of a will. In such ease, the court does not sit as a court of error to revise the action of the court of probate, but is in the exercise of the powers and jurisdiction of a court of probate charged with the duty of finally establishing or rejecting the will. On the trial of the issue in such ease, the errors or irregularities of the probate court, in admitting the will to probate, are immaterial, and can not be inquired into. The prima facie effect which the statute gives to the order of probate can only be overcome by showing that the will is, in fact, invalid.

As to the third proposition', we deem it sufficient to say that the omission of the record to state that the destruction •of the will was subsequent to the death of the testator, does not render the order, admitting such will to probate, void. If it wore, a nullity, it would afford no grounds' on which to found the action to contest the will; for, until probated, a will is not, in this state, the subject of such contest. And however erroneous the action of the probate court may have been in ordering the will to probate, while the order stands it is entitled to the same prima facie effect as the statute gives to an order probating an original will. Of course, the question of fact, as to whether the original will was destroyed subsequent to the death of the testator, was open to proof on the trial. Proof that it was not so destroyed would overcome the prima fade case made by the probate, and invalidate the supposed will.

Motion overruled.  