want of a notice is not a ground for collateral attack on the grant of administration.56

305. Hearing on petition-Proof-Questions for local court-Statute-If on the hearing the court shall find from the copies before it that the probate of such will was granted by a court of competent jurisdiction, and it does not appear that the order or decree so granting it is not still in force, the copy and the probate thereof shall be filed and recorded, and the will shall have the same force and effect as if originally proved and allowed in such court. If the foreign court had jurisdiction the probate of the will therein is conclusive as to its allowance in this state. The validity of the will is not open to question here. The foreign probate is conclusive here that the testator had testamentary capacity, that he was not subject to undue influence or fraud, and that the will was duly executed in accordance with the laws of the state wherein it was originally probated. No distinction is made between a will disposing of personalty and one disposing of realty. The proceeding in this state resembles an action on a foreign judgment.58 While the foreign probate is conclusive here as to the due execution of the will, including the testamentary capacity of the testator and his freedom from undue influence, it is not conclusive as to the validity and effect of the various provisions of the will. Questions concerning the validity and effect of the provisions of the will are not before the probate court here when a foreign will is presented for probate under the statute. Such questions are for future determination, either in the probate court or the district court, in accordance with the law of this state as respects real property and the law of the domicil of the testator as respects personal property.59 It seems that the foreign probate is conclusive that the will has not been revoked, even as to realty in this state, at least if the question of revocation was raised and determined in the foreign court. The statutory procedure dispenses with the necessity of the production and proof of the original will, and substitutes therefor the authentication of the same and of the probate thereof in the court of the foreign state. There must be proof that the testator left property in the county. In the ab

56 Dickey v. Vann, 81 Ala. 425.

57 G. S. 1913, § 7276. See 16 Ency. Pl. & Pr. 1071.

58 Babcock v. Collins, 60 Minn. 73, 78, 61 N. W. 1020; Hardin v. Jamison, 60 Minn. 112, 114, 61 N. W. 1018; In re Clark's Estate, 148 Cal. 108, 82 Pac. 760; Patterson v. Dickinson, 193 Fed. 328; Crippen v. Dexter, 13 Gray (Mass.) 330; Shannon v. Shannon, 111 Mass. 331; State v. District Court, 34 Mont. 96, 85 Pac. 866; 16 Ency. Pl. & Pr. 1071; 23 A. & E. Ency. of Law (2 ed.) 143; 40 Cyc. 1239; Woerner, Am. Law of Adm. (2

60

61

ed.) § 226; 48 L. R. A. 130; 9 Ann. Cas. 422; 14 Ann. Cas. 977; Ann. Cas. 1918A, 614.

59 Cornell v. Burr, 32 S. D. 1, 141 N. W. 1081. See Washburn v. Van Steenwyk, 32 Minn. 336, 20 N. W. 324; 22 A. & E. Ency. of Law (2 ed.) 1366; 40 Cyc. 1374; 113 Am. St. Rep. 215.

60 See Gailey v. Brown (Wis.) 171 N. W. 945; Cornell v. Burr, 32 S. D. 1, 141 N. W. 1081.

61 Bloor v. Myerscaugh, 45 Minn. 29, 47 N. W. 311; Putnam v. Pitney, 45 Minn. 242, 47 N. W. 790.

sence of a contest an allegation in the petition that the testator left property in the county is probably sufficient to make out a prima facie case. 62 While the local court must be satisfied that the foreign court granting the original probate had jurisdiction, no affirmative evidence of that fact need be submitted if the fact is not contested. The due authentication of the foreign records makes out a prima facie case. Our statute expressly provides for the court finding this fact "from the copies before it." 63 The jurisdiction of the foreign court may be attacked even though such court expressly found that it had jurisdiction. It may be shown that the testator was not domiciled in the state where the original probate was had. The burden of proving want of jurisdiction is on the contestant. The probate judge must decide whether the record presented is duly authenticated; whether the court in which the will purports to have been allowed had jurisdiction; and whether there is any estate, real or personal, in his county, on which such will may operate. Perhaps some other questions are open on this inquiry, as, for example, actual fraud in obtaining probate of the will. It is open to the local court to determine whether the proceedings in the foreign court amounted to a probate of the will within the meaning of the statute. A decree of a probate court of another state, admitting to probate a will within its jurisdiction, is conclusive evidence, if duly authenticated, of the validity of the will, upon an application to prove it in this state, even when no notice was given, if by the law of that state no such notice was required. Where it appears that a foreign will was admitted to probate in a court of competent jurisdiction, a court in this state has no power to refuse probate here under the statute on account of irregularities in the probate proceedings in the court of original jurisdiction. The proof and allowance of a will in another state, where the testator had his domicil at the time of his death, if duly authenticated, will be presumed to be in accordance with the law of that state. In the petition for probate here it is not necessary to set out the foreign statute or on the hearing here to prove that the proof and allowance of the foreign will was in accordance with the foreign statute. The presumption of regularity follows from the due authentication. The foreign

62 In re Southard's Will, 48 Minn. 37, 50 N. W. 932.

63 G. S. 1913, § 7276; Martin v. Martin, 70 Neb. 207, 97 N. W. 289; Otto v. Doty, 61 Iowa 23, 15 N. W. 578; Puryear v. Beard, 14 Ala. 121.

64 Sullivan v. Kenney, 148 Iowa 361, 126 N. W. 349; In re Horton's Will, 217 N. Y. 363, 111 N. E. 1066; Holyoke v. Holyoke's Estate, 110 Me. 469, 87 Atl. 40; Burbank v. Ernst, 232 U. S. 162. See Ann. Cas. 1918A, 616.

65 Crippen v. Dexter, 13 Gray (Mass.)

65

330: In re Connell's Will, 221 N. Y. 190, 116 N. E. 986. See In re Clark's Estate, 148 Cal. 108, 82 Pac. 760.

66 In re Connell's Will, 221 N. Y. 190, 116 N. E. 986.

67 In re Horton's Will, 217 N. Y. 363, 11 N. E. 1066; Crippen v. Dexter, 13 Gray (Mass.) 330; Shannon v. Shannon, 111 Mass. 331. See Babcock v. Collins, 60 Minn. 73, 78, 61 N. W. 1020.

68 In re Gertsen's Will, 127 Wis. 602, 106 N. W. 1096.

69 Martin v. Martin, 70 Neb. 207, 97

probate is conclusive as to the testamentary capacity of the testator and the want of undue influence, but his soundness of mind may be considered on the question of a change of domicil as affecting the jurisdiction of the court. The probate of a will in another state is entitled to full faith and credit in this state under the provision of the federal constitution. It cannot be attacked collaterally on the ground of there being a later will.71 It has been said in one of our cases, somewhat loosely, that the proceedings under the statute are mostly a matter of form.72

70

306. Letters testamentary or of administration-Disposition of residue of estate-Statute-When any will is allowed as provided in §§ 7275, 7276 (304, 305, supra), the court shall grant letters testamentary, or of administration with the will annexed, which shall extend to all the estate of the testator in this state. Such estate, after payment of debts and expenses of administration, shall be disposed of according to such will, so far as it may operate upon it, and the residue as is provided by law in cases of estates in this state belonging to persons who are residents of any other state or country.73 Under the statute it is the duty of the court to issue letters testamentary to a resident executor named in the will, if duly qualified, though such letters were not issued to him by the court where the will was originally proved. A foreign executor petitioning for probate of the will here is entitled to letters unless there are special reasons to the contrary.75 The person named in the will as executor has no power to nominate an administrator with the will annexed." A non-resident executor to whom letters have been granted in another state, is entitled to have letters issued to him here, as against a resident heir."7 It is for the courts of the domicil to construe the testator's will so far as respects any matters subject to their jurisdiction. Whether a will designates an executor is one of such questions. But the courts of this state are not bound to appoint the person designated.78

74

307. Authentication-A copy of the will and of the probate thereof, duly authenticated, must be presented. An authentication in accordance with the act of Congress is sufficient,80 but not exclusive. 81 The act of Congress regulating the authentication of foreign records reads as follows: The records and judicial proceedings of the courts of any

N. W. 289; Otto v. Doty, 61 Iowa 23, 15 N. W. 578.

70 Sullivan v. Kenney, 148 Iowa 361, 126 N. W. 349.

71 Grignon v. Shope (Or.) 197 Pac. 317. 72 Babcock v. Collins, 60 Minn. 73, 77, 61 N. W. 1020.

73 G. S. 1913, § 7277.

74 Bloor v. Myerscaugh, 45 Minn. 29, 47 N. W. 311.

75 Babcock v. Collins, 60 Minn. 73, 61 N. W. 1020; Hardin v. Jamison, 60 Minn. 112, 61 N. W. 1018.

76 In re Meier's Estate, 165 Cal. 456, 125 Pac. 1050.

77 In re Brundege's Estate, 141 Cal. 538, 75 Pac. 175.

78 Murdoch v. Murdoch, 86 Conn. 698, 86 Atl. 569.

79 Pope v. Cutler, 34 Mich. 150.

80 First Nat. Bank v. Kidd, 20 Minn. 234 (212); Puryear v. Beard, 14 Ala. 121.

$1 Thrasher v. Ballard, 33 W. Va. 285, 10 S. E. 411; Sullivan v. Kenney, 148 Iowa 361, 126 N. W. 349.

state or territory, or of any such country, shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, that the said attestation is in due form. And the said records and judicial proceedings, so authenticated, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from which they are taken." 82 No doubt an authentication in accordance with G. S. 1913, § 8412, is sufficient.83 A certificate of the presiding judge may be in general terms, to the effect that the "foregoing exemplification of the last will and testament of A. B., deceased, is authenticated in due form and by the proper officer." 84 The foreign record may be certified by the local probate judge as "judge and ex officio clerk," and the signature of such person as clerk may be authenticated by the same person as judge "sole and presiding judge.” The due authentication of the foreign probate of the will belongs to that class of jurisdictional facts which the local court must find. Where, under a statute requiring an exemplified copy, the certificate of authentication did not show that the papers had been compared by the clerk attesting them, the probate court had no power to admit the will.87 A copy of a record in another state contained a copy of the will, the affidavit of the subscribing witnesses to its execution and a certificate of the clerk of the court that the will was duly admitted to probate. It appeared that the record was in the usual form of recording such proceedings in that state. Held, that it was proper to allow the will to be filed under the statute.88

86

"85

308. Filing and recording-The failure of the probate judge to record the authenticated copy of a foreign will, which has been proved and admitted to probate under the statute, is a mere omission of clerical duty on the part of the court and not fatal to the proceedings.89

309. Effect of probate here-Collateral attack-A will allowed and filed as provided by the statute has the same force and effect as if it had been originally proved and admitted to probate in one of our courts. We dispense with the original proof of the will, but proceed in the course of administration as though the original probate proceedings had been instituted here. The administration under the statute extends to all the

82 U. S. Compiled Statutes, 1916, § 1519. See notes p. 2450.

83 First Nat. Bank v. Kidd, 20 Minn. 234 (212); In re Ellis' Estate, 55 Minn. 401, 56.N. W. 1056; Sullivan v. Kenney, 148 Iowa 361, 126 N. W. 349. See General Conference v. Michigan S. & B. Assn., 166 Mich. 504, 132 N. W. 94. 84 Wilt v. Cutler, 38 Mich. 189.

85 Stevens v. Oliver, 200 Mo. 492, 98 S. W. 492.

86 Goldtree v. McAllister, 86 Cal. 93, 23 Pac. 207, 24 Pac. 801.

87 Burden v. Blakey, 127 Wis. 264, 106 N. W. 1063.

88 Shannon v. Shannon, 111 Mass. 331. 89 Clow v. Plummer, 85 Mich. 550, 48 N. W. 795.

property of the testator in this state." An allowance of a foreign will

90

92

under this statute has been held to relate back to the death of the testator and validate a deed executed by the executor under a power in the will prior to the probate of the will in this state." It is evidence of the death of the testator and of a devise in the will."2 A foreign will, valid so far as it disposes of personalty in the state, but revoked so far as it disposes of real estate in the state, must be admitted to probate under the statute, though a contest may be made on the ground of revocation. The admission to probate of a foreign will, valid so far as it disposes of personalty in the state, and revoked by the laws of the state so far as it disposes of realty in the state, is not an adjudication of the question of the validity of the will so far as it disposes of the realty, and the question of validity may be raised on final distribution. The admission to probate here of a foreign will is not subject to collateral attack in this state except for want of jurisdiction. It is subject to collateral attack for want of jurisdiction.95 An allowance of a will in substantial compliance with the statute, but without the granting of letters testamentary thereon, has been held to give the will the same effect as if it had been duly probated and to pass title to devised land.9 310. Disposition of proceeds-Payment of debts-Residue-The disposition of the local estate is regulated by statute.97

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93

311. Prior administration of estate as intestate-A foreign will may be allowed under this statute after the estate of the testator has been fully administered as intestate without first vacating such administration.98

312. Bond-Our statutes make no express provision for a bond from an ancillary representative but doubtless the local court may require one either under G. S. 1913, § 7416, or by virtue of its general powers."99

313. Control of local court over foreign representatives taking out letters here-Where, upon the petition of non-residents, they have been appointed executors or administrators by a probate court of this state,

90 G. S. 1913, § 7276; In re Southard's Will, 48 Minn. 37, 50 N. W. 932.

91 Babcock v. Collins, 60 Minn. 73, 61 N. W. 1020. See Tillson v. Holloway, 90 Neb. 481, 134 N. W. 232.

92 Lyon v. Gleason, 40 Minn. 434, 42 N. W. 286.

93 Cornell v. Burr, 32 S. D. 1, 141 N. W. 1081. See Gailey v. Brown (Wis.) 171 N. W. 945.

94 Goldtree v. McAllister, 86 Cal. 92, 23 Pac. 207, 24 Pac. 801; In re Clark's Estate, 148 Cal. 108, 82 Pac. 760; Calloway v. Cooley, 50 Kan. 743, 32 Pac. 372; Tillson v. Holloway, 90 Neb. 481, 134 N.

W. 232; State v. District Court, 34 Mont. 96, 85 Pac. 866 (cannot be collaterally attacked on the ground that the testator had not testamentary capacity or acted under duress, fraud or undue influence); 16 Ency. Pl. & Pr. 1077; 48 L. R. A. 141. 95 In re Connell's Will, 221 N. Y. 190, 116 N. E. 986.

96 Markwell v. Thorn, 28 Wis. 548. 97 See §§ 306, 1207.

98 Stackhouse v. Berryhill, 47 Minn. 20, 49 N. W. 392.

99 See Babcock v. Collins, 60 Minn. 73, 61 N. W. 1020; Gray v. Ferguson, 86 Mich. 382 (no statute).