Opinion
No. 30880
Decided February 26, 1947.
Executors and administrators — Jurisdiction of Probate Court to administer decedent's estate — Administrator appointed in county in which decedent a resident — Proceedings instituted to probate will in county of decedent's domicile — Exclusive jurisdiction not acquired by appointment of administrator in one county — Sections 10501-55, 10504-10, 10504-15, 10504-35 and 10509-1, General Code — Jurisdiction acquired by appointing administrator in county where decedent a resident — Superseded by admitting will to probate in county of decedent's domicile — Affidavit as to will, condition precedent to appointing administrator — Pleading — Allegations of petition for extraordinary remedy to be clear and unequivocal — Prohibition — Proceeding to require production of will — Or proceeding to establish lost or destroyed will — May be maintained only in county of testator's domicile — Terms "resident" and "domiciled" not synonymous.
1. The jurisdiction over a decedent's estate acquired by the probate court of one county by the appointment of an administrator under Section 10509-1, General Code, is not exclusive of the jurisdiction over the same estate later acquired by the probate court of another county by virtue of proceedings under Sections 10504-10, 10504-15 and 10504-35, General Code.
2. The exclusive jurisdiction of a probate court referred to in Section 10501-55, General Code, does not apply when otherwise provided by law.
3. The jurisdiction of a probate court acquired under Section 10509-1, General Code, to appoint an administrator for the estate of an intestate who was a resident of the county of such court at the time he died is terminated and superseded by the admission to probate of a will of the same decedent by the probate court of another county in which such decedent was domiciled at the time of death.
4. The making and filing of an affidavit, by the person to be appointed administrator, that there is not to his knowledge a last will and testament of the intestate is a condition precedent to the granting of letters of administration of such estate. (Section 10509-4, General Code.)
5. Where an extraordinary remedy is sought the allegations of the petition therefor should be clear and unequivocal.
6. Proceedings to require the production of a will under Section 10504-10, General Code, proceedings to admit a will to probate under Section 10504-15, General Code, and proceedings to establish a lost, spoliated or destroyed will under Section 10504-35 et seq., General Code, may be maintained only in the probate court of the county in which the testator was domiciled at the time of death.
7. Section 10509-1, General Code, is not in conflict with Section 10504-15, General Code. The former provides for the appointment by the probate court of an administrator of the estate of an intestate who was a resident of the county of such court at the time of death. The latter section provides for the admission to probate of a decedent's will by the probate court of the county in which decedent was domiciled at the time of death. The term "resident as used in Section 10509-1, General Code, is not synonymous with the term "domiciled" in either Section 10504-10 or Section 10504-15, General Code.
IN PROHIBITION.
This is an original action in this court under Section 2 of Article IV of the Constitution, wherein relator seeks a writ of prohibition to prevent the judge of the Probate Court of Cuyahoga county from proceeding further in case No. 387241 in the Probate Court of Cuyahoga county, which proceeding involves the production of a will under Section 10504-10, General Code, the admission to probate of a will under Section 10504-15, General Code, and the establishment and admission to probate of a lost, spoliated or destroyed will under Section 10504-35 et seq., General Code.
It is alleged in relator's petition that respondent has "ordered the cause to proceed by the taking of testimony bearing on the question of the domicile of Kathleen Sebring Overlander."
Relator claims to be the duly appointed and qualified administrator of the estate of Kathleen Sebring Overlander under letters of administration issued to him in case No. 35757 by the Probate Court of Mahoning county, Ohio, which court has exclusive jurisdiction over the estate, and that respondent will proceed in the Probate Court of Cuyahoga county unless prevented by a writ of prohibition.
Further allegations of the petition will be set forth in the opinion below.
Respondent filed a demurrer to the petition on the ground that the facts stated therein are not sufficient to constitute a cause of action for a writ of prohibition.
Mr. F.R. Hahn and Messrs. Burgess, Fulton Fullmer and Mr. William F. Steck, for relator.
Messrs. Smith, Bellamy, Dill Hopkins, for respondent.
The following question is presented by the demurrer to the petition: Is the jurisdiction over a decedent's estate acquired by the probate court of one county under Section 10509-1, General Code, exclusive of the jurisdiction over the same estate later acquired by the probate court of another county under Sections 10504-10, 10504-15 and 10504-35, General Code?
Section 10501-55, General Code, provides:
"The jurisdiction acquired by a probate court over a matter or proceeding is exclusive of that of any other probate court, except when otherwise provided by law." (Italics ours.)
Section 10509-1, General Code, provides:
"Upon the death of a resident of this state, intestate, letters of administration of his estate shall be granted by the probate court of the county in which he was a resident at the time he died.
"If the will of any person is admitted to probate in this state, letters testamentary or of administration shall be granted by the probate court in which such will was admitted to probate." (Italics ours.)
Under Section 10509-1, General Code, where a resident of this state dies intestate the probate court of the county of which decedent was a resident at the time of death has jurisdiction to grant letters of administration, provided that the terms of Section 10509-4, General Code, have been complied with. But such jurisdiction is subject to termination upon the admission to probate of a will of such decedent by a probate court of the county in which testator was domiciled at the time of death.
Section 10509-4, General Code, provides:
"Before being appointed executor or administrator, every person shall make and file an application under oath, which must contain the names of the surviving spouse and all the next of kin of the deceased to such person known, their postoffice addresses if known, and also a statement in general terms as to what the estate consists of and the probable value thereof, and also a statement of any indebtedness the deceased has [had] against such person making said application.
"The application may be accompanied by a waiver signed by the person or persons resident of the county entitled to administer the estate, and in the absence of such waiver such person or persons shall be cited by the court for the purpose of ascertaining whether they desire to take or renounce such administration.
"Letters of administration shall not be issued upon the estate of an intestate until the person to be appointed has made and filed an affidavit that there is not to his knowledge a last will and testament of such intestate."
Relator's petition contains the following allegation:
"Relator says that relator's wife, Kathleen Sebring Overlander, died on January 19, 1946; that on January 22, 1946, relator filed an application for letters of administration of his wife's estate in the Probate Court of Mahoning county, Ohio, alleging that Kathleen Sebring Overlander died intestate and that she was a resident of the city of Sebring, Mahoning county, Ohio, at the time of her death. On the same date the Mahoning county Probate Court appointed relator administrator of his wife's estate; relator qualified as such and letters of administration were issued to him, as appears in case No. 35757 found in Administration Docket 62, page 169, of said court."
Relator's petition does not disclose that the affidavit which under Section 10509-4, General Code, is made a condition precedent to the issuance of letters of administration was made and filed in the Probate Court of Mahoning county.
There is no allegation in relator's petition that decedent left any estate, real or personal, located in Mahoning county.
While relator in his petition alleges that he filed an application for letters of administration of his wife's estate in the Probate Court of Mahoning county alleging that she died intestate, a resident of such county, there is no allegation that the court made any finding that Kathleen Sebring Overlander was either a resident of or domiciled in Mahoning county.
Where an extraordinary remedy is sought the allegations of the petition therefor should be clear and unequivocal. An illustration of the necessity for such clarity of pleading is to be found in the instant case wherein the relator is seeking a writ of prohibition to prevent the Probate Court of Cuyahoga county from proceeding to determine whether Kathleen Sebring Overlander at the time of her death was domiciled in Cuyahoga county, in the Probate Court of which county a lost, spoliated or destroyed will is sought to be established and admitted to probate.
Bearing in mind the provision of Section 10509-1, supra, that "if the will of any person is admitted to probate in this state, letters testamentary or of administration shall be granted by the probate court in which such will was admitted to probate," we proceed to a review of the statutes providing for the admitting of a will to probate.
Section 10504-15, General Code, provides:
"A will shall be admitted to probate;
"1. In the county in which the testator was domiciled if, at the time of his death, he was domiciled in this state; or
2. If the testator was not domiciled in this state at the time of his death, in any county of this state where any real or personal property of such testator is located, provided, however, that such will shall not theretofore have been admitted to probate in this state or in the state of his domicile. Intangible personal property, for the purpose of this section, shall be deemed to be located in the place where the instrument evidencing a debt, obligation, stock or chose in action is located, or if there is no instrument evidencing the debt, obligation or chose in action, where the debtor resides.
"When a will is presented for probate, persons interested in its probate may contest the jurisdiction of the court to entertain the application. Before a hearing of a contest as to jurisdiction is had, all parties named in such will as legatees, devisees, trustees or executors shall have notice thereof in such manner as may be ordered by the court."
It is thus provided that a will shall be admitted to probate only in the county in which the testator was domiciled if, at the time of his death, he was domiciled in this state. Therefore, if it be established by evidence that Kathleen Sebring Overlander at the time of her death was domiciled in Cuyahoga county, the probate court of that county obtained exclusive jurisdiction over the estate of the decedent, notwithstanding that the proceedings in the Probate Court of Cuyahoga county were instituted subsequent to the proceedings in Mahoning county. Even though the Probate Court of Mahoning county had jurisdiction in the first instance, yet the provisions of Section 10509-1, General Code, render that jurisdiction conditional. If the will of Kathleen Sebring Overlander is admitted to probate in Cuyahoga county, letters testamentary or of administration shall be granted only by the Probate Court of Cuyahoga county. A certified copy of the order of the Probate Court of Cuyahoga county admitting the will to probate when filed in the Probate Court of Mahoning county (after time for contest or appeal had elapsed), would terminate any jurisdiction over the estate by the Probate Court of Mahoning county. Of course the determination of domicile is not final. See Sections 10504-1, 10504-16 and 10509-21, General Code.
It is to be observed that the provisions of Section 10509-1, General Code, do not require the will to be admitted to probate in the probate court of the county in which letters of administration have been granted. On the contrary, the provision is plain that if the will is admitted to probate in this state, letters testamentary or of administration shall be granted by the probate court in which such will was admitted to probate.
It is strenuously argued on behalf of relator that the word "resident" in Section 10509-1, General Code, is to have the same meaning as the word "domiciled" in Section 10504-15, General Code. That this is not so is easily demonstrated. When the probate laws of Ohio were revised, consolidated and codified, effective January 1, 1932, 114 Ohio Laws, 320 et seq., Sections 10504-15 and 10509-1, General Code, were contained in the same act. Section 10504-15 provided that a will shall be, admitted to probate only in the county in which the testator was domiciled at the time of his death, while Section 10509-1, General Code, provided: "Upon the death of an inhabitant of this state, letters testamentary, or letters of administration on his estate, shall be granted by the probate court of the county in which he was an inhabitant or resident at the time he died."
In 120 Ohio Laws, 649 et seq., Sections 10504-15 and 10509-1, General Code, were amended in the same act to read as at present provided. There can be no mistake that the General Assembly meant that a will was to be admitted to probate only in the county in which the testator was domiciled at the time of death, while an administrator of an estate of an intestate leaving property might be appointed by the probate court of the county in which the decedent was a resident at the time of death.
In relator's petition it is alleged:
"On September 13, 1946, H. Melvin Roberts filed in the Probate Court of Cuyahoga county, Ohio, an application for a citation against relator herein to produce an alleged last will and testament of Kathleen Sebring Overlander, said citation marked Exhibit A and made part hereof, having been directed to and served upon relator in his individual capacity."
As will be noted from the quotations of Section 10504-10, General Code, the Probate Court of Cuyahoga county has exclusive jurisdiction of a proceeding under that section, if it be established that the decedent was domiciled in Cuyahoga county at the time of her death.
Section 10504-10, General Code, provides:
"If real or personal estate be devised, or bequeathed, by a last will, the executor, or any person interested therein, may cause it to be brought before the probate court of the county in which the decedent was domiciled. By citation, attachment or warrant, or, if circumstances require it by warrant or attachment in the first instance, such court may compel the person having the custody or control of such will, to produce it before the court for the purpose of being proved." (Italics ours.)
Section 10504-11, General Code, provides:
"The process mentioned in the next preceding section may be issued into any county in the state, and shall be served and returned by the sheriff, or other officer to whom it is delivered."
Relator's petition as amended discloses that the proceedings in the Probate Court of Cuyahoga county were instituted by H. Melvin Roberts who claims that he was appointed as executor of the will of Kathleen Sebring Overlander. Such amended petition shows that there was filed in the Probate Court of Cuyahoga county a verified application and petition alleging that "Kathleen Sebring Overlander was a resident of the city of East Cleveland and county of Cuyahoga, and was domiciled therein."
With the sworn application before him that at the time of her death Kathleen Sebring Overlander was domiciled in Cuyahoga county, there was a clear legal duty resting upon respondent to proceed to determine whether or not such allegation of domicile was true. If true, no court other than the Probate Court of Cuyahoga county would have jurisdiction over the matters hereinabove referred to.
Relator's amended petition also contains the following allegations:
"On September 24, 1946, relator appeared specially in said proceeding, the same being case No. 387241 in the Probate Court of Cuyahoga county, Ohio, by filing an objection to the jurisdiction of said Probate Court of Cuyahoga county, Ohio, a motion to dismiss or strike said citation from the files and a motion to dismiss all of the proceedings in that court.
"On October 3, 1946, H. Melvin Roberts filed in the Probate Court of Cuyahoga county, Ohio, an application to probate a copy of an alleged lost, spoliated or destroyed last will and testament of Kathleen Sebring Overlander.
"On November 19, 1946, relator, again appearing specially, filed an objection to the jurisdiction of the Probate Court of Cuyahoga county, Ohio, a motion to dismiss or strike said application from the files and a motion to dismiss all of the proceedings in that court. On the same date the Probate Court of Cuyahoga county, Ohio, being fully advised of the pendency of the proceedings in Mahoning county, but notwithstanding the pendency of said proceedings, overruled all of relatort's objections and motions as a matter of law and ordered the cause to proceed by the taking of testimony bearing on the question of domicile of Kathleen Sebring Overlander. Relator says that defendant will proceed to try said cause unless prohibited by this court."
As a part of relator's petition, made so by stipulation, is the following:
"State of Ohio : In the Probate Court : ss. No. 387,241
"Cuyahoga County :
: Application to probate "In the Matter of the Probate : copy of the lost, spoliated of the last Will of : or destroyed Last Will of Kathleen Sebring Overlander : Kathleen Sebring Overlander.
"The applicant respectfully represents to this court that on the 19th day of January, 1946, Kathleen Sebring Overlander was a resident in the city of East Cleveland and county of Cuyahoga, and was domiciled therein, and she died on said date in said county leaving an estate therein.
"That theretofore on the 19th day of October, 1944, the said Kathleen Sebring Overlander made, subscribed, acknowledged and published her Last Will and Testament which said will was duly signed and attested by two witnesses and executed by said Kathleen Sebring Overlander duly and according to law.
"That said will was unrevoked at the date of the death of said testatrix, but that said will has been lost, spoliated or destroyed.
"The petitioner says that there is a carbon copy of said will and that a photostatic copy of the copy of said will is attached hereto.
"The petitioner was appointed as the executor of said will.
"Your petitioner further represents that said Kathleen Sebring Overlander died leaving Arlington M. Overlander as her surviving spouse whose address is 345 West Ohio Avenue, Sebring, Ohio; and the following named persons her next of kin known to be a resident of this state, Phyllis Crook, East Liverpool, Ohio, who is a half sister of the deceased mother of Kathleen Sebring Overlander, and Pearl S. Taylor, Hazel S. Cliff, and Wilda Sebring whose address is Burbank, California, whose relationship to Kathleen Sebring Overlander is not known to the petitioner.
"The petitioner further represents that he has no knowledge of any person whose interest it may be to resist the probate, and known to reside in the county where the testatrix resided at the time of her death or elsewhere.
"Wherefore, this petitioner prays that said will may be established and admitted to probate and record." (Signed and sworn to before a notary public.)
Section 10504-35, General Code, provides:
"The probate court may admit to probate a last will and testament which it is satisfied was executed according to the provisions of law in force at the time of its execution, and not revoked at the death of the testator, when such original will was lost, spoliated or destroyed subsequent to the death of such testator, or after he became incapable of making a will by reason of insanity, or before the death of such testator if testator's lack of knowledge of such loss, spoliation or destruction can be proved by clear and convincing testimony, and it cannot be produced in court in as full, ample and complete a manner as the court now admits to probate last wills and testaments, the originals of which are actually produced therein for probate."
Summarizing:
(A) Upon the death of a resident of this state, intestate, letters of administration of his or her estate shall be granted by the probate court of the county in which he or she was a resident at the time of death.
(B) A will shall be admitted to probate only in the county in which the testator was domiciled if at the time of his death he was domiciled in this state.
(C) The production of a last will may be enforced only by the probate court of the county in which testator was domiciled at the time of death.
(D) A lost, spoliated or destroyed will may be established and admitted to probate only in the county in which the testator was domiciled at the time of death.
(E) The jurisdiction of a probate court acquired under Section 10509-1, General Code, is conditional and subject to the exclusive jurisdiction of a probate court of another county later acquired under. Section 10504-15, General Code.
(F) Section 10509-1, General Code, is not in conflict with Section 10504-15, General Code. Section 10509-1, General Code, applies only to intestate estates and requires residence only, while Section 10504-15, General Code, applies to testate estates and requires that testator be domiciled at time of death within the jurisdiction of the probate court in which the will is offered for probate.
(G) The term "resident" as used in Section 10509-1, General Code, is not synonymous with the term "domiciled" in either Section 10504-10 or Section 10504-15, General Code.
If the evidence before respondent establishes that Kathleen Sebring Overlander was domiciled in Cuyahoga county at the time of her death and left a last will, the proceedings in the Probate Court of Cuyahoga county will be exclusive of the jurisdiction of any other probate court in the state. We certainly will not issue a writ to prevent respondent from performing his clear legal duty, which would be the effect if relator were granted a writ of prohibition in this case.
We do not decide where Kathleen Sebring Overlander was domiciled at the time of her death. Such question is not before us. However, it may be observed that in the oft-cited case of Cheever v. Wilson et al., 9 Wall., 108, 19 L.Ed., 604, Mr. Justice Swayne said: "It is insisted that Cheever never resided in Indiana; that the domicile of the husband is the wife's, and that she cannot have a different one from his. The converse of this latter proposition is so well settled that it would be idle to discuss it. The rule is that she may acquire a separate domicile whenever it is necessary or proper that she should do so. The right springs from the necessity for its exercise, and endures as long as the necessity continues." See Van Fossen v. State, 37 Ohio St. 317, 320; Restatement — Conflict of Laws 51, Section 28. In Volume 2, Page on Wills (Lifetime Ed.) 73, Section 572, it is said: "* * * the courts of the United States hold that she [a wife] may acquire a separate domicile for the purpose of probating her will and administering her estate."
It will be noted that Section 10504-15, General Code, provides that any person interested in the probate of a will may contest the jurisdiction of the court to entertain an application to probate a will.
Relator has relied strongly upon the case of State, ex rel. Taylor, Admr., v. Gregory, Judge, 122 Ohio St. 512, 172 N.E. 365. That case has no application here for the reason that it involved the appointment by different probate courts of administrators. It did not involve the questions of the production of a will, or the admission to probate of a will, or the establishing and admitting to probate of a lost, spoliated or destroyed Will. The question of domicile is not mentioned in that per curiam opinion.
It follows, therefore, that the demurrer of respondent should be and hereby is sustained.
As the facts set forth in relator's petition and the stipulated amendment thereof disclose that no further amendment could be made whereunder this court would issue a writ of prohibition against relator proceeding to have determined whether Kathleen Sebring Overlander was domiciled in Cuyahoga county at the time of her death, final judgment will be entered for respondent.
Demurrer sustained and writ denied.
WEYGANDT, C.J., MATTHIAS and ZIMMERMAN, JJ., concur.
BELL, J., dissents,
HART and SOHNGEN, JJ., not participating.
The question presented in this case being of the utmost importance to the bench and bar of this state, and finding my thinking totally at variance with the conclusion reached I shall as briefly as possible state the reasons for my dissent.
The facts are substantially as follows:
Kathleen Sebring Overlander died on January 19, 1946, and on the 22nd of that month, relator, her surviving spouse, filed an application for letters of administration on her estate in the court of probate of Mahoning county. The application sets forth that decedent died intestate and that she was a resident of the city of Sebring, Mahoning county, Ohio, at the time of her death. On the same day that court issued letters of administration to relator. Thereafter a proceeding was instituted in the court of probate of Cuyahoga county to require the production of a last will and testament, the admission to probate of such will or the establishment and admission to probate of a lost, spoliated or destroyed will.
Relator filed objections to the jurisdiction of the Cuyahoga county court and motions to dismiss the proceeding. That court, after being fully advised of the proceedings in Mahoning county, overruled the relator's objections and motions and ordered the taking of testimony bearing on the question of the domicile of Kathleen Sebring Overlander.
Thereupon the instant case was instituted in this court and was submitted upon the petition, a general demurrer thereto and a stipulation.
By the terms of Section 10509-1, General Code, letters of administration shall be granted by the "probate court" of the county in which the decedent was a resident at the time of his death.
The granting of letters of administration by the court of probate of Mahoning county creates the presumption that such court found the decedent was a resident of Mahoning county at the time of her death and further found that all other jurisdictional statutory requirements had been complied with.
Section 10501-55, General Code, provides:
"The jurisdiction acquired by a Probate Court over a matter or proceeding is exclusive of that of any other Probate Court, except when otherwise provided by law."
Hence by the issuance of letters of administration and the appointment of the decedent's surviving spouse (relator) as administrator, the court of probate of Mahoning county acquired exclusive jurisdiction over the proceeding to settle decedent's estate.
Section 10501-55, General Code (and its predecessor, Section 10498), as construed and applied by this court is dispositive of this case. So far as the writer has been able to ascertain, the prior decisions of this court are all to the effect that, where a court of probate of any county acquires jurisdiction of a proceeding to settle the estate of a decedent, such court has full and ample authority to determine the question of residence or domicile, as well as all other questions involved in the application, and the judgment granting or refusing to grant the application is protected by the same rule as to collateral attack as are judgments of other courts of record. See Wilberding, Admr., v. Miller, 90 Ohio St. 28,106 N.E. 665.
In the case of State, ex rel. Barbee, Exr., v. Allen, Probate Judge, 96 Ohio St. 10, 117 N.E. 13, this court had before it a situation which may be briefly stated as follows:
On May 27, 1916, a paper writing purporting to be the last will and testament of John B. McLean was offered for probate in the court of probate of Fayette county. Objection was made to the jurisdiction of the court on the ground that the decedent was a resident of Franklin county. The objection was overruled and on June 30, 1916, the paper was admitted to probate as the last will and testament of the deceased. On May 31, 1916, a paper writing purporting to be the last will and testament of John B. McLean was offered for probate in the court of probate of Franklin county and was admitted to probate on July 31st of that year. Thereafter an action was brought against Allen as judge of the court of probate of Fayette county to prohibit him from proceeding further with the administration in Fayette county. In denying the writ this court made the following pronouncement in the syllabus:
"1. The Probate Court, vested by the Constitution with jurisdiction in probate and testamentary matters and recognized as competent to decide on its own jurisdiction, has power to determine whether a will is entitled to probate and whether letters testamentary thereon shall issue.
"2. When, upon the hearing of an application for the probate of a will and for letters testamentary, the Probate Court finds that the testator at the time of his death was a resident of the county in which the application is made, an order or judgment of the court admitting the will to probate and issuing letters testamentary thereon, however erroneous the conclusions of law and fact upon which the judgment or order is based may be, cannot be reviewed or set aside by a superior court in a proceeding in prohibition." (Emphasis added.)
It should be noted in passing that the Allen case, supra, was the outgrowth of an attempt to invoke the jurisdiction of two courts of probate in different counties in the settlement of the estate of a decedent who died testate.
Another controversy involving the settlement of an estate came before this court in the case of State, ex rel. Taylor, Admr., v. Gregory, Judge, 122 Ohio St. 512, 172 N.E. 365. In that case the court of probate of Franklin county duly appointed one Taylor administrator of the estate of Mary Wise Hawk. On the following day application was made to the court of probate of Delaware county and one Kilbury was appointed to administer the same estate. Thereafter an action in prohibition was instituted in this court against one Gregory, judge of the Delaware county court of probate. In that case this court used the following language:
"The Probate. Court of Franklin county acquired jurisdiction over the estate involved in this controversy, and under the provisions of Section 10498, General Code, that jurisdiction is exclusive of any other probate court."
This court allowed the writ of prohibition.
Section 10498, General Code, mentioned in the Gregory case, supra, is present Section 10501-55, General Code.
The last-mentioned case was the result of an attempt to invoke the jurisdiction of two courts of probate in the settlement of the estate of a decedent who died intestate.
In the case of State, ex rel. Black et al., Exrs., v. White, Judge, 132 Ohio St. 58, 5 N.E.2d 163, paragraph one of the syllabus reads as follows:
"Where the administration of an estate has been lawfully committed to the Probate Court of a particular county, the jurisdiction of such court to settle such estate is exclusive."
In the opinion, at page 63, the court reiterated the proposition that by the Gregory case, supra, it is the established law of this state that the jurisdiction of a court of probate once acquired over an estate is exclusive of every other court of probate. By those decisions it is established that where two wills are involved or where two administrations are involved the court of probate first acquiring jurisdiction has jurisdiction exclusive of any other such court.
In the instant case, it is held that, because the proceeding in Mahoning county is to settle the estate of the decedent as an intestate and because the proceeding in the court of probate in Cuyahoga county is to settle the estate of the decedent who it is claimed died testate, a different rule applies.
The conclusion reached by the majority is based upon the proposition the word "resident"as used in present Section 10509-1, General Code, and the word "domiciled" as used in present Section 10504-15, General Code, are not synonymous.
A brief history of Sections 10509-1, 10504-15 and 10501-55, General Code, might be interesting in view of the previous pronouncements of this court.
Present Section 10509-1, General Code, under various code numbers has been on the statute books since 1840 and for 100 years the phrase "inhabitant or resident" was contained therein. In 1943 the General Assembly by amendment struck out the word "inhabitant." Section 10504-15, General Code, under various code numbers has been on the books since 1902 and has always contained the word "domiciled." Section 10501-55, General Code, under various code numbers has been on the books since 1853 in essentially the same language. Hence when this court decided the Wilberding, the Allen, the Gregory and the White cases, supra, it was dealing with the same statutes containing in the one (Section 10509-1, General Code) the word "resident" and in the other (Section 10504-15, General Code) the word "domiciled." This court has considered the words residence and domicile as synonymous as used in the statutes relating to the settlement of estates.
In the Allen case, supra, the court was considering the question of the probate of a will and yet in both the syllabus and the opinion the court used the word "resident," although at that time the then statute (Section 10520, General Code) with reference to the probate of a will contained the word "domiciled" and nowhere in that section did the word "resident" appear.
It is true that sometimes it is held that the word "resident" and the word "domicile" are not synonymous, but the general rule is that those words are most frequently used synonymously.
In 28 Corpus Juris Secundum, 5, Section 2, a, it is said:
"While the terms 'domicile' and 'residence' are frequently used synonymously, or said to be synonymous, and 'residence' and 'legal residence' have been defined in language similar to that used in defining 'domicile,' 'domicile' and 'residence' are not, when accurately and precisely used, convertible terms. * * *"
In Section 2, b, it is said:
"It has been declared that the terms 'residence' and 'domicile' are almost universally used interchangeably in statutes, that 'residence,' when used in statutes, is generally interpreted by the courts as meaning 'domicile,' but with important exceptions, and that whenever the terms are used in connection with subjects of domestic policy, the terms are equivalent, as they also are, generally, where a statute prescribes residence as a qualification for the enjoyment of a privilege, or the exercise of a franchise; and 'residence' as used in various particular statutes has been considered synonymous with `domicile.' " (Emphasis added.)
Abundant authority is quoted by the textwriter in support of those statements.
It would seem from a reading of the sections of the Probate Code relative to the administration of estates, that the word "resident" as used in Section 10509-1, General Code, and the word "domiciled" as used in Section, 10504-15, General Code, are and should be held to be synonymous.
Furthermore this record discloses that the relator, Arlington M. Overlander, the surviving spouse of the deceased, was a resident of Mahoning county, and that being true the domicile of the decedent was also in Mahoning county. There is ample authority to support the proposition that speaking generally the domicile of the husband is by operation of law the domicile of his wife.
In 28 Corpus Juris Secundum, 11, Section 7, it is said:
"Domicile by operation of law is that domicile which the law attributes to a person, independently of his own intention or actual residence. It is consequential, ordinarily resulting from legal domestic relations, as that of the wife arising from marriage, or the relation of parent and child."
At page 26, Section 12:
"The mere fact that a husband and wife are living apart does not prevent his domicile from fixing hers; but when he abandons her, or, by his conduct, justifies her in leaving him, she may acquire a separate domicile.
"The general rule that the wife's domicile follows that of the husband is not affected, in the absence of a valid separation as by a judicial decree of separation or divorce, by the mere fact that the husband and wife are living apart."
Kennan in his work on Residence and Domicile, 444, Section 238, is also authority for the proposition that the domicile of a husband is the domicile of his wife and that she is not capable of establishing a separate domicile.
In 17 American Jurisprudence, 619, Section 45, is found this language:
"While the rule as to the domicil of the husband being the domicil of the wife is based partly on the fact that the husband is the 'bread-winner' or wage earner of the family and as such is entitled to select the domicil, the fact that in a particular case the wife is the head of the family because of her independent means and supports the family does not entitle her to select the domicil * * *."
In my opinion the domicile of the decedent as a matter of law was in Mahoning county and the court of probate of Cuyahoga county is without jurisdiction to hear testimony on the subject of the domicile of the decedent which had already been fixed by operation of law.
It would seem that no deceased person in Ohio should be held to have had at the time of his death a residence in one county and a domicile in another so as to authorize two courts of probate to exercise jurisdiction in the settlement of his estate. Such a holding could result in a clash of jurisdictions among courts of probate of the various counties within this state. To avert such a situation was the primary purpose of the passage of Section 10501-55, General Code.
Under the decision in this case it would be possible for the court of probate of Cuyahoga county to find that the domicile of this decedent was in Cuyahoga county and upon proper proof to admit a will to probate in that county. It is also possible for the court of probate of Mahoning county to proceed with the administration of the estate of decedent. The Cuyahoga county court of probate has no jurisdiction of the court of probate of Mahoning county or vice versa. Each court could defy the orders of the other and the result would be another law suit to determine which court had jurisdiction.
The statute (10501-55, General Code) and the previous decisions of this court, as well as orderly procedure, require that the demurrer should be overruled and the writ allowed.