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to revoke the will because its provisions were not clearly and distinctly proved by two credible witnesses. The court found that the divorce was valid, that Flora Ellis was the lawful wife of the deceased, that he died intestate, and that she was entitled to letters. The judgment of the probate court was affirmed. The contestants appealed from an order overruling their motion for a new trial.
F. G. Ingersoll and Charles N. Bell, for the appellants.
BI. L. Countryman and Stringer & Seymour, for the respondent.
405 GILFILLAN, C. J. Appeal from an order appointing an administratrix. Stating the history of the matters involved in chronological order, in 1869 Matthew Ellis and Rachel Cottrell, then residents in Wisconsin, intermarried in that state, and resided therein-the latter part of the time at Hudson-from the time of their marriage till October, 1883, when they came to St. Paul, Minnesota, February 29, 1884, she commenced, by proper personal service of summons, an action against him for divorce in the circuit court for the county of St. Croix (in which Hudson is situated), in said
Her complaint was sworn to by her, and it alleged, among other things, that she then was, and for more than three years last past had been, a resident of said county and state, and that for more than a year prior to bringing the action the defendant had willfully deserted and refused to live and cohabit with her, and it demanded judgment dissolving the marriage, and requiring the defendant to pay her the sum of eight thousand dollars alimony. The defendant filed an answer, not raising any substantial issues, and the parties made and filed a stipulation agreeing upon the alimony at six thousand one hundred and fifty dollars, and a horse, car. riage, robes, etc., and all the defendant's household goods except his library. The answer and stipulation suggest an agreement between the parties for a divorce-a suggestion 406 which ought to have caused the court, and we must assume that it did, to require strict and ample proofs of the facts showing a cause of action, and which would have been influential upon an application to vacate the judgment rendered on the ground of collusion and fraud upon the court. But that did not go to the jurisdiction of the court over the
A reason for deciding against the plaintifl, or a fraud
upon the court as to the judgment to be rendered, or the character of the motive that induced the bringing the action, does not affect the jurisdiction. March 27, 1884, judgment in that action was rendered, dissolving the marriage between the parties, and allowing the plaintiff therein the alimony stipulated; and that alimony was paid. September 2, 1886, Matthew Ellis and Flora Wilson intermarried, and they lived together as husband and wife until December 7, 1892, when he died in St. Paul, Ramsey county, in this state.
Flora Ellis, the second wife, filed a petition in the probate court of said county, stating the necessary jurisdictional facts, alleging that Matthew Ellis died intestate, and that she was his widow, and asking to be appointed his administratrix. On the day appointed for the hearing Rachel Ellis appeared, denied that Flora was the widow, alleged that she was the widow, and asked that she be appointed administratrix. At the same time appeared a brother and sister of deceased, representing that the deceased had made a will, still in force, and asking the court to make the proper order or decree in the premises. The probate court appointed Flora administratrix, and on an appeal to the district court, in which the court heard all the parties, that court affirmed the decision of the probate court.
Before taking up the principal question in the case, the only one which seems to us of sufficient importance, as presented by the evidence, to call for consideration at any length, we will dispose of others of less importance. It is claimed by appellants that the act of 1889, known as the “Probate Code,” was not passed in the house of representatives in the manner prescribed by the constitution, because it does not appear from the house journal that the bill was read on three different days, or that the rule was suspended, as required by the constitution. It is not clear to us what 407 the Probate Code has to do with the case, for the rule providing who shall be entitled to administration was the same under the prior law as under that act, and the evidence of a will offered was not sufficient to establish a will not produced either under the prior law or the Probate Code. Every bill signed and approved as required by the constitution is presumed to have been properly passed. And, as held in State v. Peterson, 38 Minn. 143, the absence from the journal of either house of an entry showing that a particular thing was done, is no evidence that it was not done, unless the consti
tution requires the entry to be made; and there is no such requirement in respect to the reading of a bill on three different days, or its passage under a suspension of the rule. The objection, therefore, is not well taken.
Ellis executed two wills-one in 1890, which he destroyed, with intent to revoke, in July, 1891, when he executed another. He destroyed that will, apparently with intent to revoke it, December 31, 1891. The appellants offered evidence tending to prove that at that date he had not sufficient mental capacity to make or revoke a will. On the respondent's objection this evidence was excluded, on the ground, as we understand, that it was immaterial, because there was not sufficient evidence of the will.
It must be apparent that, in order to defeat an application for the appointment of an administrator, proof of a will, not forthcoming, must be such as to show that it can be established. Proof that one was executed will not suffice without proof to a reasonable certainty of its contents. To establish a will without such proof would be to make a will for the party.
The evidence afforded no means of determining with any degree of certainty what disposition the will of July, 1891, made of the testator's property. The most that could be made of it was that it left to Flora Ellis one-third of the property, and something more, but how much or what more did not appear; that there were specific devises or legacies to others, but to whom, except one, or how much to any one of them, did not appear; and that there was a residuary deviseo or legatee, but who, did not appear; and there were no means of determining how niuch would be the residue. Of course a will not produced could not be established
408 such evidence, and evidence that the testator had not capacity to revoke it would be immaterial.
That leaves only the question, Which of the two, Flora or Rachel, was the widow of Matthew Ellis? That depends on the validity of the judgment divorcing Rachel and Matthew.
It is objected that the judgment was not sufficiently proved, because: 1. The authentication was not in conformity with the act of Congress; 2. The copy authenticated is a copy of the judgment-roll, and it does not appear the judgment was ever entered in the judgment-book.
When the proceedings of a court of another state are authenticated as provided by act of Congress they must be received as evidence; but it is competent for the legislaturo
of each state to provide that proof of such proceedings may be received in the courts of such state by authentication less than is prescribed by act of Congress, and the authentication in this case was in accordance with the statute of the state.
We will assume that the laws of Wisconsin are the same as our own in respect to entering judgments and making up the judgment-rolls. The roll, or an authenticated copy of it, is evidence of all that is properly contained in it, including the judgment, and is evidence, prima facie at any rate, that the judgment was properly rendered and entered so as to have effect.
It is objected to the judgment that by the laws of Wisconsin (which on this point were proved) the action for divorce is a local action--that is, that it is properly triable in the county where the parties, or one of them, resides; that by the pleadings it appears that the only county in which either party resided was the county of St. Croix, but that the hearing in the action was had in the county of Eau Claire. And it is urged that in hearing the case the court acted without jurisdiction. We are not referred to any decision in that state as to the effect on the jurisdiction of a trial (by the same court) in one county when the statute provides that the trial ought to be in another. In this state it might be an irregularity, and, if objected to, error, but would not affect the jurisdiction of the court so as to render the judgment void: Gill v. Bradley, 21 Minn. 15; Kipp v. Cook, 46 Minn. 535; 409 Tullis v. Brawley, 3 Minn. 277. And we assume that the rule is the same in Wisconsin.
The appellants offered, in order to impeach and avoid the judgment, to prove that Rachel Ellis was compelled to bring the action by the defendant's course of conduct toward her, which consisted in endeavoring to persuade her to bring the action; that during the period of two years he abandoned her at different times, at first for a week at a time, gradually lengthening the periods of absence until they became three months at a time, leaving her unprovided with the necessaries of life, and threatening, whenever he returned, that he would continue that course of conduct unless she consented to bring the action, and that unless she so consented he would run away, and leave her without a penny; and also to prove other acts of his of a similar character, all of which had such ellect upon her nerves and health and mental condition that
she was not a free agent, in which condition she brought the action; from all which it is claimed she brought it under duress. Whether at any time, and especially whether after she has received and enjoyed the fruits of the action, and has acquiesced for years, until the defendant has married again, and has died, and there is left solely the matter of distributing his property, a woman plaintiff could, because of such facts, obtain any relief in the same action, we will not undertake to say. Certainly it would be no ground for assailing the judgment in a collateral proceeding at any time. In the majority of actions for divorce by wives on the ground of desertion or ill usage the same claim of duress to bring the action might be made as in this case, and the stronger the grounds for divorce the stronger would be the ground to avoid the judgment whenever it might be convenient or profitable to do so. The court properly excluded the evidence.
The principal question in the case was presented by the appellants' offer to prove, and the ruling of the court exclud. ing the evidence, that at the time of bringing the action in Wisconsin, and of the divorce decree, neither of the parties to it was a resident of that state, but that both were residents of this state. It is claimed for the evidence that, if admitted, it would have shown that the Wisconsin court had no jurisdiction of the subject matter 410 of the action, to wit, the marital relation between the parties; that consequently the decree was void, Rachel remained the wife, and is now the widow, of Matthew, and that the marriage with Flora was void.
The question thus raised is of great importance, and diffi. cult to satisfactorily determine. It is an undisputable general proposition that the tribunals of a country have no jurisdiction over a cause of divorce, wherever the offense may have occurred, if neither of the arties has an actual, bona fide domicile within its territory. This necessarily results from the right of every nation or state to determine the status of its own domiciled citizens or subjects without interference of foreign tribunals in a matter with which they have no concern. But when in the court of a state an action for divorce is brought, and a decree of divorce rendered, the court is presuned to have determined the facts essential to its jurisdiction, among them the residence of the parties.
When, as between whom, and to what extent is such de