Connecticut. Supreme Court of Errors.

Connecticut reports: containing cases argued and determined in ..., Volume 50 online

. (page 30 of 61)
Online LibraryConnecticut. Supreme Court of ErrorsConnecticut reports: containing cases argued and determined in ..., Volume 50 → online text (page 30 of 61)
Font size
QR-code for this ebook


required by the statute, and therefore nothing was proposed
to be done in the way of its revocation except in st^rict
accordance with its own terms. But aside from this con-
sideration, if anything can be settled by legal authorities,
the doctrine is too well established to be longer called in
question, that a license of this character, whether revocable
4n terms or not, is neither a contract nor property in any
eonstittttional sense, but is subject at all times to the police
powers of the sts^ government. In the language of
Wmght, J., in giving the opinion of the court in Board of
Ikci%e V. Barrie^ 84 N. York, 667, " these licenses to sell
liquors are not contracts between the state and the persons
Hoensed, giving the latter vested rights, protected on general
principles and by the constitution of the United States
against any subsequent legislation ; nor are they property
in any legal or constitutional sense. They have neither the
qualities of a contract nor of property, but are merely
temporary permits to do what otherwise would be an offence
against the general law. They form a portion of the inters
nal police sjrstem of the state, and are issued in the exercise
of its police powers, and are subject to tiie direction of the
^te government, which may modify, revoke or continue
them as it may deem fit If the act of 1867 had declared
that licenses under it should be irrevocable (which it doee
not, but by its very terms Uiey are revocable,) the legisla^
tures of subsequent years would not have been bound by
the declaration. The necessa^ power of the legislature
over all subjects of internal police being a part of the
general grant of legislative power given by the constitution^
cannot be sold, given away or relinquished."



Digitized by VjOOQIC



OCTOBER TERM, 1882. 829

La Croix V. County Commissioners.

In Colder v. Kurhy^b Gray, 697, a liceuse to sejl intoxi-
cating liquors had been granted for a pertain period, but
before the expiration of that period it was annulled, and it
was urged upon the argument in. behalf of the plaintiff that
the license was a contract and within the protectipn of the
constitution of the ,United States. B ut tbe , court overruled
this claim, and Mr. Justice Bigelow, in giving the opiniop
of the court, says: "The whole argument of the counsel
for the plaintiff is founded on a fallacy. A license author-
izing a person to retail spirituous liquors does not, create any
contract between him and the government. It bears np
resemblance to an act of incorporation, by which, in con-
sideration of the supposed benefits to the public, certain
rights and privileges are granted by the legislature to indi-
viduals under which they embark their skill, enterprise and
capital. The statute regulating licenced ))ouses has a very
different scope and purpose. It was ip tended to restrain'
and prohibit the indiscriminate sale of certain articles deemed
to be injurious to the welfare of the community. The effect
of a license is merely to permit a person to carry on the
trade under certain regulations and to exempt him from the
penalties provided for unlawful sales. It therefore con-
tains none of the elements of a contract. * * It is
manifest that this statute, like those authorizing the
licensing of theatrical exhibitions and shows, sales of fire-
works and the like, was a mere police regulation, intended
to regulate trade, prevent injurious practices, and promote
the good order and welfare of the community, and liable to
be modified and repealed whenever, in the judgment of the
legislature, it failed to accomplish these objects."

Decisions to the same effect, supported by equally cogent
reasoning, may be found in the cases of State v. Holmes^ 1
Chand., 225 ; Fell v. The State, 42 Md., 71 ; Beer Company
V. Massachusetts, 97 U. S. R., 25; Stone v. Mississippi^
101 id., 814 ; Moore v. The State, 48 Miss., 147.

In People ex rel Seller v. Wright, 3 Hun, 306, and in
People ex rel. Presmeyer v. Board of Commissioners of
Police and Excise, 59 N. York, 92, under statutes almost



Digitized by VjOOQIC



880 FAIRFIELD COUNTY.

Wlllette* Appeal from Probate.

identical with our own, the relators had been granted
licenses to sell intoxicating liquors, and before the licenses
expired had been summoned to appear before the respective
boards granting the licenses, to show cause why they should
not be revoked for specified violations of the statute relative
to the sale of liquors. The relators appeared and objected
to the proceedings for the same reasons as were urged in the
case at bar, and thereupon as here applied for writs of pro-
hibition, which were denied by the courts, and very able
opinions were given in both the cases showing the fallacy
of the arguments for the relators and fully sustaining the
right to revoke the licenses, without giving the relators any
opportunity to be heard before a jury upon the question
whether or not they had been guilty of violating the laws
relative to the sale of intoxicating liquors.

In Commonwealth v. Moylan^ 119 Mass., 109, and Commonr
wealth V. Hamer^ 128 id., 7^, licenses to sell intoxicating
liquors were revoked on hearing before the mayor and
aldermen by whom they had been granted, and it was held
they were subject to forfeiture in that manner.

We forbear further citations that might be made, for the
authorities already adduced furnish most ample vindication
of the judgment rendered by the Superior Court.

There was no error in the judgment complained of.

In this opinion the other judges concurred.



Edwaed Willbtts and others' Appeal from Probate.

Fdied within a probate district in this state, leaving property to be admin-
istered npon, and a will there made attested by only two witnesses.
The probate court granted administration on her estate, finding in the
order that she was there domiciled and died intestate. Af tenv^utl the
executors named in the will had it proved in a surrogate's court in the
state of New York, (by the laws of which the wiU was valid,) upon a
citation of all parties interested. An appeal was taken from this decree
to the Supreme Court of that state, in which it was found that the testa-



Digitized by VjOOQIC



OCTOBER TERM, 1882. 331

WlUetts' Appeal from Probate.

trix was domiciled in the state of New York at the time of her death and
the decree of the surrogate's court was aflOrmed. Held—

1. That this judgment was conclusive upon all persons who were parties to
the proceeding, as to the question of F*8 domiciL

2. That it was the duty of the probate court here, upon application of the
executors, to admit the will to probate, for the purpose of ancillary
administration.

Appeal from a decree of the probate court of the district
of Greenwich, denying the probate of a will ; taken to the
Superior Court in Fairfield County. The following facts
were found by the court : —

Alice Fowler died at Greenwich in this state February
7th, 1875. Soon after her death, the court of probate for
the district of Greenwich granted administration upon her
estate to one William C. Field, and in the decree found
that she had her domicil within that district at the time
of her death, that she had died intestate therein, and that
at the time of her death she had goods and estate whereof
administration appertained to that court. This decree
was passed on the 8th of March, 1875.

Alice Fowler at the time of her death left an instrument
purporting to be a last will and testament, executed Decem-
ber 6th, 1874, in Greenwich, and attested by two witnesses
only, in accordance with the laws of the state of New York.

At a surrogate's court, held for the county of Westchester,
in the state of New York, in the town of White Plains, on
the 21st day of February, 1876, upon motion of the execu-
tors named in the will, and upon due notice and citation
issued from the court to all parties concerned, the will
was duly proved and a decree of the surrogate's court was
passed admitting the will to probate and establishing it as
a will of real and personal estate.

An appeal was taken from this decree to the Supreme
Court of the state of New York, and from thence to the
Court of Appeals, and upon the appeals such proceedings
were had that the question whether Alice Fowler was domi-
ciled in the state of New York or in the state of Connecti-
cut at the time of her death, was tried by a jury upon a
feigned issue framed for that purpose before the Supreme



Digitized by VjOOQIC



382 FAIRFIELD COUNTY.

WiilettB^ Appeal inrnt Piobttle;

Court, to which by the laws of New York such appeals
were taken, being a common law court of genei*al jarisdic-
tion. The jury found by their verdict that at the time of
her death she was domiciled in the state of New York;
whereupon judgment was rendered by tW Supreme Court
affirming the decree of the surrogate's court; which judg-
ment of the Supreme Court and decree of the surrogate's
court have never beeln annulled or reversed. The parties
to the present appeal were- ail parties ta the proceedings in
the state of New York.

j\. large portion of the property which Alice Fowler left
at her death was in the state of New York. Soon after her
death Field, who had been appointed administrator by the
probate court in this state, removed all the personal prop-
erty belonging to her estate, of which the greater part
consisted of money in savings banks, from the state of New
York into this state.

On the 6th of December, 1878, Field having resigned his
trust as administrator, the court of probate, appointed in
his stead one John 6. Reynolds, who thereupon became
possessed of all the property and estate of Alice Fowler.

After the will was proved in the state of New York, the
executors therein appointed, having been duly approved
and qualified in the surrogate's court for Westchester
County, proceeded to administer upon the estate in the
state of New York, and also made demand' upon Reynolds
for all the property of the estate in his bands, in order that
they might administer thereon, but be refused to deliver it
to them.

Thereupon a true and attested copy of the will, with a
true and attested copy of the records and proceedings upon
the probate of the same in the surrogate's court, and of the
proceedings of the Supreme Courts was offered in the court
of probate for the district of Greenwich, and an application
was made by the executors that the will should be admitted
to probate in that court, and administration granted thereon
ancillary to the administration in the state of New York ;
but the court denied the application, and refused to adrait



Digitized by VjOOQIC



OCTOBER TERM, 1882. 88»

Willetts* Appeal from Probate.

the will to probate ; from which decree of the court the
present appeal was taken.

Upon these facts the case was reserved for the advice of
this court.

E. W. Seymour and N. It. Hart^ for the appellants.

1. Ik is undoubted law that a jiarty within the territoriiil
jurisdiction of a court, and served with process, or one who
submits himself to its jurisdiction hj appearance, in a con^
troversy within the cognizance of the cottrt^ is bound by the
judgment pronounced therein, in every court in the land,
unless annulled or set aside by appeal or proceedings in
error. Pennoyer v. -STe^, 96 U. S. Reps., 729; Bank of
North America V. Wheeler^ 28 Conn*, 489. The parties to
these proceedings were all parties to the proceedings in
New York by appearance^ and it is conceded that those
proceedings were within the cognizance of its courts.

2. The question of domicil was made a distinct issue in
the proceedings in New York, and its determination was the
very essence of the judgment pronounced therein. Fur-
thermore, in the Supreme Court this question was separated
from the proceedings purely probate in their nature, and,
by means of a feigned issue framed especially for that pur-
pose, it was submitted to the decision of a court of general
jurisdiction, in a trial had to a jury, according to the course
of the common law. Sutton v. -Bay, 72 N. York, 482,
484. " In respect to a court of gtoeral jurisdiction, it is
to be presumed that the court had jurisdiction till the con-
trary appears. But the want of jurisdiction may ah^'ays be
shown by evidence, except when jurisdiction depends upon
a fact that is litigated in a emit, and is adjudged in favor of
the party who avers jurisdiction. Then the question of
jurisdiction is judicially decided, and the judgment record
is conclusive evidence of jurisdiction, until set aside or
reversed by a direct proceeding upon i^peal or writ of
error." 7 Wait's Actions & Defences, 182 ; Wright v. Doug*
lassj 10 Barb., 97 ; Bolcomb v. Phelps^ 16 Conn., 186 ; Sear9
V. Terry^ 26 id., 281 ; First Nationai Bank v. Balcomy 35 id.,



Digitized by VjOOQIC



834 FAIRFIELD COUNTY.

Wllletts' Appeal from Probate.

851, 869. By the judgment of the New York Supreme Court,
the question of the domicil of Alice Fowler became " rea
adjudicata^' between these parties, and no longer an open
jurisdictional fact. Hungerford^B Appeal from Probate^ 41
Conn., 327; Supples v. Cannon^ 44 id., 428, and note on
page 431.

3. The New York judgment is conclusive of the fact of
domicil, notwithstanding the grant of administration made
to Field by the probate court in Greenwich, and its finding
that the deceased belonged in that district. This finding
was by a court of limited jurisdiction, and of a jurisdic-
tional question, in an «2; parte proceeding. And this court
has held that ^Hhe judgment of a court of limited jurisdic-
tion is never conclusive of a jurisdictional^ question. Its
jurisdiction "may always be controverted." Sears v. Terry ^
26 Conn., 282; First' National Bank v. Balcom^ 35 id., 359;
Olmstead^s Appeal fyom Probate^ 43 id., 123; Culvers
Appeal from Probate^ 48 id., 173. And in each of these
cases the right of the Superior Court to ignore the finding
of the probate court on the question of domicil was sus-
tained by this court.

4. It is not necessary to our conclusion that the grant of
administration by the probate court of Greenwich should
be wholly coram non judice and void. Such grant would
be sustained upon the ground that there was estate within
the district to be administered upon. There being assets
within its jurisdiction, the administration is proper as ancil-
lary to the domiciliary administration in New York. 3 Red-
field on Wills (3d ed.), 26. The administration in Con-
necticut was proper, as the parties might never take out
administration or prove a will in the domiciliary jurisdic-
tion. Stevens v. Gaylord^ 11 Mass., 256, 263. The pro-
ceedings would be of the nature of proceedings in rem^
like proceedings by attachment against non-resident debtors
having property within the state. Upon such proceedings,
the right of the administrator to hold possession of the
property of the decedent for the benefit of creditors and
heirs, is established by a judgment in rem, but such pro-



Digitized by VjOOQIC



OCTOBER TERM, 1882. 886

Willetts' Appeal from Probate.

ceedings do not determine who the creditors are, still less
who the heirs are and what is the law of distribution. The
eases of Pennoyer v. Neff^ 95 U. S. Reps., 726, and Bartlett v.
Spicer^ 75 N. Y., 528, lay down the rule that in no case what-
ever, where there is no service of process, nor any appear-
ance, is a judgment or decree of any effect except as in
rem. It is of no effect in personam. That is, as against
specific property of a non-resident debtor,' or property cov-
ered by the mortgage of a non-resident mortgagor, or
against the estate of a deceased person for the purpose of
satisfying creditors, the courts may proceed in rem by
attachment, foreclosure, or the appointment of an adminis-
trator.

5. The proceedings in New York to establish the will
involved the rights of the parties thereto under the will,
and were personal in their nature. The proponents sought
to establish the will because they were interested to do so.
The contestants sought to defeat it because their interests
were involved. The judgment of probate finally determined
these conflicting claims, and was conclusive as a judgment
in personam upon every question litigated. And in these
proceedings the fact of domicil, as necessary to establish the
validity of the will, was no more a jurisdictional question
than is the fact of the place of contract when the validity
of a contract depends upon the lex loci contractus.

6. The will is entitled to probate in our courts, notwith-
standing it was not executed in accordance with our statute.
Our statute concerning the execution of wills (Gen. Stat-
utes, p. 369, sec. 2), relates only to wills of persons domi-
ciled in this state. IrwirHs Appeal from Probate^ 38 Conn.,
137. If the decree of the courts of New York is valid, the
question where the will was executed can not now be gone
into by our courts, but this is, and must be held to be, a
will "executed according to the laws of the state where
executed," and therefore entitled to be " admitted to pro-
bate in this state, and effectual to pass any estate of the
testator in this state." If the question could now be gone
into, it would be a most narrow and vicious construction of



Digitized by VjOOQIC



886 FAIRFIELD COUNTY.

WUtetto' Appeal from Probate.

the statute to hold that a will, executed during a temporary
absence by a citizen and domiciled resident of the state of
New York, was .not a will, to all intents. and purposes
within the meaning of the statute, executed in New York.
It would be a perversion of the liberal intent of the statute,
which is, that the will of a citizen of another state which is
good for probate there shall be good here. Again, the
statute was not passed to affect the case of a demand for
probate of a will already probated in another state, but to
provide for oases where our own citizens, temporarily
absent, themselves ignorant of the requirements of our
law, and employing counsel equally so, should execute wills
according to the laws of the state where drawn, but not in
accordance with our laws. It had not in view at all the
probate of foreign wills nor the subject of ancillary admin-
istration.

J. B. Ourtis^ for the appellees.

1. The question is, whether the will in question can be
admitted to probate in the district of Greenwich in this
state. If Alice Fowler was domiciled in Greenwich at the
time of her deoea8e» then her will, being attested by only
two witnesses, is void under . the statute of this state and
cannot be probated here. If she executed it in Connecti-
cut with only two subscribing witnesses, then it cannot be
admitted to probate under the statute as it now stands.
Rev. Statutes, p. 369, sec. 2. The statute forbids in terms
the probate of such a will, and if she was domiciled here
when she executed it it cannot be, admitted to probate here.
Irwin^s Appeal from Probate^ 33 Conn., 135.

2. That she was domiciled in this state at the time she
executed the will appears from the will itself, which
describes her as of Greenwich in this state, and by the find-
ing of the court of probate that she was domiciled here at
the time. And this faet is not contradicted by the finding
of the jury which tried the question of domicil in the state
of New York. If this doctiine is correct then the court of
probate for the district of Greenwich could not admit the



Digitized by VjOOQIC



OCTOBER TERM, 1882. 887

Wllletts' Appeal from Probate.

will to probate; and this seems to have been the under-
standing of the legislature, which has since provided for
just such a case as the one presented. Public Acts of
1882, p. 167.

3. This view of the matter does not leave the proponents
remediless. If the will is such that it can not be probated,
it does not follow that the court can not consider it on
application for distribution and to have administration in
this state declared ancillary to administration in the state
of New York, and the property transmitted there for distri-
bution in accordance with the laws of that state. Parsons
V. Lyman, 20 N. York, 103. The statute of 1882 does
not provide for the probate of a foreign will, only for record-
ing it.

4. But a very important question arises here : Was the
question of domicil at all material, and did it make any
difference whether Alice Fowler was domiciled in the state
of New York or not? By the statute of New York no will
of personal estate made by a person not being a citizen of
that state shall be admitted to probate, unless such will
** shall have been executed according to the laws of tke
state or country in which the same was made." N. York
Rev. Statutes, p. 152, sees. 84, 85 ; Matter of Roberts* s will,
8 Paige, 446. Under the provisions of the New York
statute it must appear somewhere in the record that the
surrogate's court found that she was a citizen of New York
at the time she executed the will, in order to give that
court power to consider the question of domicil, for if she
was not a citizen at that time that court had no jurisdiction
to decide upon the question of domicil nor could the
Supreme Court consider that question on appeal. That
this question of domicil was immaterial upon the probate of
the will is shown by the decisions of that state. Matter of
Cullman's will, 38 Barb., 864; 1 Redfield on Wills, 854.
Nor is it a material issue in the probate of a will whether
the deceased had her domicil within the jurisdiction of the
court where the will is proved. The question of domicil
could only arise in this case between the executor claiming

Vol. l.— 22



Digitized by VjOOQIC



838 FAIRFIELD COUNTY.

WiUetts' Appeal from Probate.

under the will and those parties contesting his appoint-
ment. It was not a question between the heirs and
devisees with respect to distribution, and can not so be con-
sidered. In order that a judgment or finding shall be con-
clusive upon certain facts, those facts must be material to
the issue, and no judgment or findipg upon immaterial
facts, even if the parties should agree that the court might
make a finding upon them, will under any circumstances be
deemed conclusive. Freeman on Judgments, sec. 271;
Campbell v. CanscUuSj 25 N. York, 613; Wolfe v. Washburn^
6 Cowen, 262.

6. The court of probate here having first entertained
jurisdiction and decided the question of domicil, it was not
in the power of the court of a neighboring state to make a
different decision which would be binding on the court
where the original finding was made. The former judg-
ment was final and conclusive unless appealed from, and
cannot be called in question by any collateral proceeding.
Bush V. Sheldoni 1 Day, 172 ; Judion v. Lake^ 3 id., 326 ;
Lockwood V. Sturdevanty 6 Conn., 388 ; Gates v. Treaty 17
id., 892 ; Dickinson v. Hayes^ 31 id., 422 ; Mix's Appeal from
Probate^ 35 id., 122 ; Freeman on Judgments, sees. 319, 320.
And this court says in Hall v. Paine^ 47 Conn., 431, that
one judgment can not be supplemented by another, and
again, further on, " one judgment, though for a part only of
a cause of action, is an absolute bar to another, and a satis-
faction of the whole.'* Burritt v. Belfy^ 47 Conn., 328;
Turner v. Davis^ 48 id., 397 ; Nuckolls v. Irtoin^ 2 Nebr., 60.
The decree of the court of probate for the district of
Greenwich was not considered, put in evidence, or in any
way passed upon, by the court in New York, and is there-
fore in no wise impeached by the proceedings in that state,
and is final and conclusive until regularly set aside. Dis-
tinct actions upon the same subject matter may be prose-
cuted in different states at the same time ; but the judgment
first rendered must prevail, otherwise there would be a
direct conflict of jurisdiction ; and if, after the first judg-
ment, judgment should be rendered in another jurisdiction.



Digitized by VjOOQIC



OCTOBER TERxM, 1882. 889

Willetts' Appeal from Probate.

the court in which the first judgment was rendered would
not be compelled to vacate its own judgment to sustain the
foreign judgment. Such a doctrine as that contended for
would destroy all comity between states and therefore
should not be entertained

Pardee, J. (After stating the facts.) It is ur'ged by the
appellees that the will in question is not valid in the state
of New York because it was executed in this state ; that the
probate court in this state having fii*st decided the question
as to the domicil of the testatrix at her death, it was not in
the power of the court in New York to make a contrary



Online LibraryConnecticut. Supreme Court of ErrorsConnecticut reports: containing cases argued and determined in ..., Volume 50 → online text (page 30 of 61)