Loring v. Oakey

Foster, J. The question directly before the court is, whether the decree of the judge of probate shall be affirmed or reversed, by which he ordered Mr. Oakey, the appellant, to produce a paper purporting to be the last will and testament of the testatrix, which was by him presented as such to the surrogate’s court in the county of New York, where was the domicil of the testatrix at her decease, and which was there disallowed and probate [269] thereof refused. An earlier will was by the surrogate admitted to probate, and Mr. Oakey, who is named executor in both wills, has offered to the probate court of this county a copy of the record of the probate of the earlier will, praying that said copy may be ordered to be filed and recorded here as the last will of the deceased. The decree of the probate court requires him to produce the will disallowed in New York, and to take all proper means to enable the probate court to determine which of the two instruments is the last will of the testatrix under the laws of Massachusetts. The authority for this decree cannot be found in the Gen. Sts. c. 92, § 16, by which every person having the custody of a will is required “ within thirty days after notice of the death of the testator ” to “ deliver it into the probate court which has jurisdiction of the case, or to the executors named in the will.” Mr. Oakey, as executor under both wills, delivered them to the court of appropriate jurisdiction in New York, the state in which he and the testatrix were both domiciled at her decease. Nor can the decree be maintained under § 17, authorizing proceedings against “ any one suspected of retaining, concealing, or conspiring with others to retain or conceal” a will. The appellant has been guilty of neither of these acts. He has given the petitioner a written consent that the disallowed will may be withdrawn from the files of the surrogate’s court in New York. We fail to perceive any sin of omission or commission in his conduct. And we know of no statute provision or rule of probate practice by which the courts of Massachusetts can require him under a penalty to take any further active proceedings to bring the paper to this state, and submit it to probate jurisdiction here. But we are asked to determine the question which of the two testamentary instruments ought under our laws to be established as the will of the testatrix in Massachusetts. This in the present posture of the ease we cannot consent to do. The parties interested in setting up the paper of later date should obtain it; or, if they cannot procure the original, should offer an authenticated copy. And we have no doubt that the inability to produce the original, caused by its detention in a foreign court, would [270] make secondary evidence of its contents admissible, as much as if the paper were lost. They should prove its execution, and such facts as to the place where and the laws of the country in which it was executed as they rely upon to entitle it to be admitted to probate in this Commonwealth. Then, and not before, the question will arise which of the two instruments is under our laws the one to be established here. There is much difficulty in determining whether the will sustained and probated in the domicil of the testatrix can be here set aside in favor of one of later date already disallowed there; and whether the later will, if admissible to probate here for any purpose, should be allowed to operate upon real estate in Massachusetts only, or' also upon personalty in this jurisdiction. It will be time enough to interpret the statute provisions on this subject, and to investigate the principles of law in the light of which their construction must be determined, when all the facts of the case are regularly before us. Until then, we decline to express any opinion upon them. The decree of the probate court is reversed, and the case remitted for further proceedings there.