Opinion
December, 1921.
Millard F. Tompkins, for plaintiffs.
Harold Remington, for defendant Clara Mae Blackburn.
John M. Harrington, for defendants Leonard A. Blackburn and Nannie Vaughn Blackburn.
Action for an interpleader. Plaintiffs were stockbrokers who held an account in favor of decedent, Samuel L. Blackburn, for $20,227.68, and $600 second Liberty Loan bonds. They interpleaded as defendants decedent's Ohio administratrix, his second wife, as well as his executor, legatees and next of kin, viz., mother and brother, under his holographic will, which was admitted to probate in North Carolina. Decedent was born in North Carolina; he married his first wife in 1906, and she obtained an absolute divorce from him in West Virginia on November 24, 1914. On September 19, 1914, two months before the entry of the final judgment of divorce, decedent married his second wife. His Virginia holographic will recognized her as his wife, and a valid common-law marriage is thereby proved. The evidence convincingly establishes that the decedent and his second wife were domiciled and lived together until some months before his death in Cleveland, O., and that the decedent was domiciled in the state of Ohio at the time of his death. The will sought to be established in this action could not be proved in the state of Ohio because it is holographic; its provisions also offended the community property law of the state of Ohio. Immediately after his death on February 27, 1919, and on March 4, 1919, decedent's second wife was appointed ex parte as his administratrix in Ohio, and as such took possession of all his assets to be found in Ohio. Her petition alleged decedent left no next of kin and that his entire estate did not exceed $4,500. Shortly thereafter, and on March 10, 1919, his mother and brother proved ex parte in North Carolina his holographic will, which left everything to them. The prior Ohio administration, if Roderigas v. East River Savings Institution, 63 N.Y. 460, 466, 467, had not been overruled, would have been final and conclusive on the whole world that the decedent died intestate; also that the Ohio administratrix was entitled to the whole personal estate wherever situated. But in Scott v. McNeal, 154 U.S. 34, 43, 46, the Roderigas case was overruled. The full faith and credit clause of the Federal Constitution is under the guardianship of the United States Supreme Court, and it is the duty of all state courts to follow its rulings. The full faith and credit clause of the Federal Constitution is now interpreted to mean that every state has exclusive jurisdiction over property within its borders, and where testator has property in more than one state, each state has jurisdiction over the property within its limits and can in its own courts provide for the disposition thereof in conformity with its laws. Brown v. Fletcher's Estate, 210 U.S. 82, 89-90; Iowa v. Slimmer, 248 id. 115; Thormann v. Frame, 176 id. 350, 353-356. In overruling the Roderigas case the Supreme Court of the United States followed the views of the House of Lords. Coucha v. Coucha, 11 App. Cas. 541, 551-554, 564, 572. As the highest court of the British Empire has found it impossible to make a probate decree conclusive outside of the jurisdiction of the local government wherein it was rendered, the ruling of the United States Supreme Court adopting that rule here, contrary to the former and overruled practice of this state, is now the law of New York and of every other state. Under the law of New York a will of personalty executed by a non-resident in the manner required by the laws of another state in which such will was executed (Virginia), may be established here by action if the case is not one where the will can be admitted to probate in a Surrogate's Court under the laws of this state. Code Civ. Pro. § 1861, subd. 2; Decedent Estate Law, §§ 200(2), 206, added by Laws of 1920, chap. 919. The will sought to be established in this action disposed of personalty only; was valid under the laws of Virginia, where it was executed, and could not be probated in the Surrogate's Court under the laws of this state, and therefore can be established by action in the Supreme Court of this state. Inasmuch as the holographic will could not have been proved in Ohio against the wife's objection, her ex parte administration proceedings in Ohio gave the Ohio court plenary jurisdiction over all property which the decedent left in Ohio. The evidence establishes that at the time of his death the decedent was a resident of and domiciled in the state of Ohio, and the court of the state of North Carolina which admitted decedent's will to probate was without jurisdiction to admit said will to probate. The second counterclaim of defendants Leonard A. Blackburn and Nannie Vaughn Blackburn is dismissed. The motion of defendant Clara Mae Blackburn, individually and as administratrix, to amend her pleadings to conform with the proof by inserting three additional paragraphs at the end of her answer and counterclaim, to be numbered paragraphs 11, 12 and 13, as set forth in notice of said motion, is hereby granted. Judgment is directed establishing the holographic will of decedent as his last will and testament, with costs to all parties appearing individually by separate attorneys.
Judgment accordingly.