HILLSBOROUGH COUNTY. I think the question whether the domicile of the testatrix was in Manchester at the time of her death is material, and that it must be determined against the appellant before the copies can be permitted to be filed under the statute. No question is made but that the general rule is, as stated by counsel for the appellant, that the jurisdiction of the probate of wills is primarily exclusive in the probate court for the district in which the testator is domiciled at the time of his death.
Applying this rules if the testatrix was domiciled at Manchester at the time of her death, the probate of her will and primary administration of her estate belongs to the probate court of the county of Hillsborough.
The appellee has no ground therefore to stand upon, except that the legislature, in a certain class of cases, has precluded probate courts from inquiring into a fact, upon which their own jurisdiction depends, — that when copies of a will, and its probate in a foreign jurisdiction, are presented, no inquiry can be had whether the original probate, and hence the primary administration, ought not to be taken here. I must say it seems to me this would fall little short of a renunciation of the duty which the state owes its citizens to protect them in their rights of property, by seeing to it that the estate of persons deceased, whether real or personal, situated within our jurisdiction, be administered according to our laws. Nothing but language quite unequivocal and clear would warrant the conclusion that such was the intention of the legislature.
The act upon which the appellee relies has been in existence without material alteration since 1790; and for quite a portion of that time, to say the least, there has existed alongside it a statute declaratory of the general rule, already stated, that a will must be presented for probate in the county where the deceased had his domicile.
An examination of the act shows that it does not in terms, nor by implication, make the foreign probate of a will conclusive as to this question of domicile upon which the jurisdiction depends. The first act, that of 1790, carefully provided for notice, and that the copies might be filed if no sufficient objection were made against it. In this *Page 486 particular the law certainly is not altered by the present act. Upon sufficient objection being made, the judge of probate must undoubtedly refuse to allow the copies to be filed. What is to be regarded by the judge of probate as a sufficient objection? It seems to me that if the domicile of the testator was within his county, that most clearly constitutes a sufficient objection; because, in that case, the will must be there presented for probate, and the primary administration be there had.
If that be so, the judge of probate cannot legally avoid the question of domicile when it is raised, and the appellant is entitled to have it determined by a jury, or in some other way, on this appeal.
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