[*650]  Consummation of a frequently expressed intention upon the part of a person, domiciled by choice and resident in the city of New York for twenty-five years and up to six days before his death, to change his domicile to Connecticut, his domicile of origin, is not shown by mere proof that he was engaged up to the time of his death upon an unconsummated plan to centralize all his property in a Connecticut corporation bearing his name, nor by his making arrangements in New Haven, Ct., while there for a part of a day, three days before his death in New York, to board with a person in New Haven at some future time, nor by his examining on the same day a house in New Haven with a view to purchasing it in the future. A person’s declarations, whether written or oral, as to where his domicile is, are evidence inferior to his acts in that regard and are to be rejected where they conflict with his acts.

A domicile of choice, required to be gained animo et facto, can be relinquished only in the same manner, and both the animus and factum must be expressive of a present intention to reside presently and permanently in the new domicile. Where the manner and facts of a person’s return to his domicile, after a one-day’s visit to the alleged new domicile, indicated that he had no present intention of remaining permanently in the alleged new one and also that he had never left his present one without intending to return to it, the court considered that his domicile remained unchanged.

In determining the bona fides of the intent to change one’s domicile motive may sometimes be considered, as where a person has made a will and codicils which illegally suspend the power of alienation as limited by the laws of his domicile, or where it appears that he desired to escape taxation imposed by those laws.

An action by a legatee under a will, alleged to be that of a New York testator, to procure a judgment establishing it and its codicils upon the ground that they are in Connecticut under such circumstances that they cannot be obtained for probate in the proper Surrogate’s Court of the State of New York, and also upon allegations that its last codicil, executed in Connecticut three days before the testator’s death and describing him as a resident of New Haven, Ct., was thus made and executed to evade the laws of the State of New York and because the will and codicils illegally suspended the power of alienation [*652]  Henry Bradley Plant died on the 23d day of June, 1899, in the eightieth year of his age, at the city of New York. For the preceding twenty-five years he had been continuously domiciled in the county of New York, having his permanent home at No. 586 Fifth avenue, where he died; while his permanent office for the transaction of business was at No. 12 West Twenty-third street in that city. He left him surviving his widow, the plaintiff, and an only son, the defendant Morton Freeman Plant, the issue of whose marriage is a son about four years of age, named after the testator, and who is the infant defendant in this action.

He left a last testament consisting of a will, dated January 23, 1893, and three codicils dated respectively November 22, 1894, May 25, 1899, and June 20, 1899; the will and the first two codicils were severally executed at the city of New York, while the last codicil was executed at the city of New Haven, in the State of Connecticut.

The complaint thereupon alleges that by the execution of the New Haven codicil it was his object to circumvent and evade the laws and policy of the State of New York, and to suspend the absolute ownership of personal property and the absolute power of alienation of real estate for a longer period than permitted by the laws of this State; and that the declaration in the codicil that he was a resident of New Haven was made for the purpose of carrying out such object, when, in fact, he was not then, nor at the time of his death, a resident of Connecticut; that at the time of his death he was not seized of any real property either in New York or in Connecticut; but was possessed of over ten millions of dollars of personal property (at the time of the trial its value had doubled) consisting mostly of stocks and bonds of various corporations; that the physical location of the major part of this property was in New York at the time of his death, and that a part still remained there.

By reference to the will and codicils the complaint then shows that the plaintiff is a legatee having no interest beyond an annuity of $30,000; that the defendant Morton F. Plant has a like interest; that the residuary estate is to be held in trust during the lives of the widow, the son and the grandson; that the trust terminates on the death of the grandson providing the latter’s youngest child is then twenty-one years of age; and that otherwise it continues until the youngest child of the grandson arrives  [*654]  then have jurisdiction because the decedent at the time of his death was a resident of the State of New York.

The final allegations of the pleading concern themselves with the laws of Connecticut and New York as affecting the plaintiff’s rights in the premises.

The answer, after raising certain jurisdictional objections, alleges that Mr. Plant died a resident of Connecticut, that his will was properly probated there; that all the steps attending the removal of the will and the subsequent probate proceedings were had with the full knowledge, consent and approbation of the plaintiff, who was a willing party to the Connecticut probate. All the allegations of the complaint inconsistent with these averments are denied, and there are specific denials of all allegations imputing to the defendants, or any of them, improper conduct or ulterior motives.

On the issues thus raised a very extended trial has been had before me. Barring the expert evidence on the status of the law of Connecticut, the voluminous testimony was confined mainly to two underlying questions of fact. The first and fundamental one was the issue of domicile. Of what jurisdiction did Mr. Plant die a resident? The second was the question of the alleged fraud on Mrs. Plant and on the Connecticut Probate Court in the proceedings involving the admission of Mr. Plant’s will to probate in the district of New Haven.

After a somewhat extended examination of this latter question I have decided not to state my conclusions thereon; first, because it becomes immaterial in the view I take of the case; secondly, because there is doubt whether fraud is adequately pleaded (Plant v. Harrison, 52 App. Div. 434); and thirdly, because of the graver doubt whether, under the decisions of the Federal courts, controlling in this instance because a constitutional question is involved, the judgment of a court of a sister State may be impeached for fraud. Christmas v. Russell, 5 Wall. 290; Simmons v. Saul, 138 U. S. 439; Garrett v. Boeing, 68 Fed. Rep. 51; Hanley v. Donoghue, 116 U. S. 1, 4.

I address myself then to the question of domicile.

I do not deem it necessary to preface the discussion of the facts with any lengthy statement of principles of law. Domicile is so essentially a question depending upon the minute facts and circumstances of each particular case that precedents, with necessarily  [*656]  choice (Udny v. Udny, supra) has not been followed in this country where the rule seems to be that a domicile once acquired continues not only until it is abandoned but until another is acquired. Jacobs Domicil, ¤ 114. Bearing these general principles in mind, let us now search the facts.

Henry Bradley Plant, the testator, was born at Branford, in the State of Connecticut, on the 27th day of October, 1819. His ancestors, on both sides of the line, were of old Connecticut stock, and, on the paternal side had been residents of Branford almost from its earliest settlement. His father died when he was still very young, and his mother, having remarried, he was taken by her to Martinsburg, New York, the home of his stepfather, and thence, after a short time, to New Haven, Connecticut, where she acquired a permanent residence. It appears that his boyhood was spent between his mother’s home at New Haven and his grandmother’s place at Branford. In 1837, when he became a deck hand on a line of boats plying between New Haven and New York, he began his varied and successful business career, the requirements of which seem to have exercised a determining influence on his successive places of domicile, even to the attempted return to New Haven in his old age.

In 1840 he became a registered elector or voter of the town of New Haven, and two years later married his first wife at Branford. Shortly thereafter he engaged in the express business, in connection with the steamboat line on which he had been employed, and that gradually grew to such proportions that his presence was more and more required in New York. From the lists of registered electors of the city of New York, and from the statements made by his biographer, and by his son, the inference is fair that he acquired a residence in the city of New York, probably in Spring street, some time between 1846 and 1854. In the latter year he removed to Augusta, Ga. Here he resided, and just prior to the beginning of the Civil War organized the Southern Express Company. His first wife died in Augusta in 1861; she was first buried there, but years later, that is, 1896, her body was disinterred and placed in a family vault at Branford. In 1869 Mr. Plant left Augusta and returned to New York. From that time and continuously for thirty years thereafter, he was a domiciled resident of this city and county, and it is beyond dispute  [*658]  supervision, all authority emanated and all interests converged. On the day before his death Mr. Plant attended at his office during the customary hours and presided over his business that had gone on uninterrupted as theretofore.

The probative value of these facts of his domestic and business life is reinforced by those of his communal relation. Mr. Plant regularly exercised his suffrage rights in this city and from 1880 to 1899, both years inclusive, was regularly taxed on personal property as a resident. Besides his social life was centered here, he was a club member, and New York was the domicile of the family of his only son.

On this statement of facts there would seem to be a very complete identity between legal residence or domicile and physical residence. In fact so firmly rooted does his domicile in New York appear, that only the clearest evidence of a consummated intention could avail to establish domicile elsewhere. We have now to consider the facts relied on to effect this change.

Mr. Plant died on June 23, 1899. It was conceded on the trial what could not be substantially disputed, that up to June seventeenth of that year he was domiciled in New York. The defendant Harrison, the attorney who guided his footsteps in the avowed attempt to establish New Haven as his legal home, testified to having told Judge Cleaveland of the New Haven Probate Court, on the 28th day of June, 1899, that Mr. Plant was domiciled in New York ‘until quite recently,’ and the defendant Erwin, also one of Mr. Plant’s attorneys, admitted on the stand that June 17, 1899, marked the termination of Mr. Plant’s legal residence in New York.

We have then primarily to consider what evidence there is of Mr. Plant’s intention to change his domicile, and secondly, the occurrences of that interval of six days that are claimed to give expression by act to the indicated intention.

The defendants trace back the expression of intention to the beginning of 1898, when he spoke to the defendant Tilley of the intended unification of all his interests in one company to perpetuate his name under the title of the Henry Bradley Plant Company. This was followed in January, 1899, by a talk with Harrison, who suggested that it was unnecessary to incorporate a new company, but that an application could be made under the charter of the South Eastern Investment Company for a  [*660]  original holdings in the South Eastern Investment Company had been removed to New Haven prior to his death to be transferred to the new company, together with the additional shares issued to him on the occasion of the increase of the stock of the South Eastern Investment Company to the full amount provided by the charter. A repeated review of the record has satisfied me that whatever may have been Mr. Plant’s ultimate purpose, and however far he may have progressed in carrying out his unification idea, the plan had not been consummated at the time of his death. Even the certificates of the Henry Bradley Plant Company, the evidence of the completed transfer, were not made out to Mr. Plant, but, as the defendants testified, were only issued weeks after his death and made to run to his estate.

In this view of these facts it must be clear that the probative force attached to them by the defendants as bearing on the question of intention to change his domicile is much impaired. Starting from the premise that Mr. Plant contemplated a change of domicile and proposed to do certain acts to that end, it is obvious that if the acts themselves were not completed, the purpose, at least so far as those acts were concerned, was not carried out. Had there been a complete transfer of his estate to the new company, the intent to change would appear so much nearer realization. There was no such transfer, and while any acts done with a view towards an ultimate complete transfer must be regarded as some expression of the continuing intent, yet the absence of completion requires a rejection of this branch of the testimony as furnishing facts of much weight on the subject of consummated intent and remits us to an examination of the other facts relied on.

There are certainly in the record enough declarations of intention, mostly oral, and there is one important piece of written testimony.

On the 24th day of May, 1899, there was a discussion concerning the proposed execution of a codicil on the day following. Harrison testifies that Mr. Plant at that interview stated ‘that he had intended for some time to resume his home in Connecticut, his birthplace and resume his domicile there.’ Erwin corroborates him and adds that Mr. Plant proposed further changes in his will after his resumption of Connecticut citizenship. Morton P. Plant, less emphatic on the question of change of domicile,  [*662]  legally to effectuate the intent and to establish by overt acts residence in the new locality.

Three overt acts are relied on by the defendants. These will best appear by a narrative of Mr. Plant’s movements from the sixteenth day of June to the twenty-third, the day of his demise.

On Friday, the sixteenth, at three o’clock, Mr. Plant, accompanied by his valet, Wilson, and a maid, Mary Cahill, left New York for Branford. They went through to their destination without stopping at New Haven. He took with him two bags and a basket of food. Fannie Hinde, the housekeeper who packed one of the bags, testifies that its contents consisted of one shirt, a pair of slippers and stockings enough to last him for two or three days. The other bag packed by the valet contained the instruments Mr. Plant required in consequence of his illness. The food was intended for his meals while at Branford. It appears that he was sick while there and left the house only once, then to go to the local cemetery. On Sunday, the eighteenth day of June, one of Mr. Plant’s distant relatives, the wife of a second cousin, called on him; she testifies that he told her that Mrs. Plant had not accompanied him as he could only stay a short time, and that ‘he had orders from his family physician to return on Tuesday back to his home.’ This witness is corroborated by her son who accompanied her. The pastor of the Catholic church at Branford, who visited Mr. Plant the next evening, Monday the nineteenth, testifies that he was in bed and said that ‘the doctor called him home on account of his health’; that he had been ill for several days, and that he had already remained too long. The following morning, Tuesday, the twentieth of June, Mr. Plant, taking his two grips with him, left Branford on the nine-eight train for New Haven. The running time between the two places is, according to the testimony of one of the conductors of the line, a little less than half an hour. At about four that afternoon, Mr. Plant left New Haven, reaching New York at five-thirty. He never returned to New Haven, and from the sixteenth to the twenty-third, the only time he spent there was the interval of less than seven hours on the twentieth.

We have now to examine the happenings of that interval. The maid having been sent ahead with a message to Mrs. Plant that he would be ‘home’ in the evening, and the valet, by Mr. Plant’s instructions, remaining at the depot to attend him on  [*664]  Mr. and Mrs. Plant had often stayed at this house as the guests of Mrs. Hoadley during their prior brief visits to New Haven, and it was Mr. Plant’s custom on the occasion of his shorter visits to run in there for a meal.

To return now to the first overt act. It is claimed to be embraced in the statement made by Mr. Plant to Mrs. Hoadley when he called on her on the twentieth day of June. Various versions are given of what transpired and are founded in alleged statements made by Mr. Plant upon his return to Harrison’s office, and upon the repetition by the plaintiff of statements made to her by Mrs. Hoadley. Two salient facts stand out in the accounts given on behalf of the defense, first the announcement to Mrs. Hoadley of prior acquisition of residence in New Haven and secondly the arrangement to board with her. According to Harrison Mr. Plant said he had told Mrs. Hoadley he ‘had come to board with her.’ Harrison’s stenographer reports Mr. Plant as saying he ‘would come’ and board with her. Erwin claims that Mr. Plant’s admission was to the effect that he had told Mrs. Hoadley that he ‘had fixed’ his residence in New Haven, and that ‘he was going to board with her.’ In their brief the defendants select the following account, given by the defendant Morton F. Plant, as the reliable narration of Mr. Plant’s repetition of the occurrence: ‘Jennie (Mrs. Hoadley) told me that the last time Henry was here he came up to the house and said, ‘I am now a resident of New Haven, and until such time as I can get a house to live in I want you to consider me as a boarder.’’

Mrs. Plant does not dispute having reported the interview with Mrs. Hoadley. But her testimony of what Mrs. Hoadley told her contains no mention of change of residence, and all reference to the boarding question is qualified as having been made jocularly. Mrs. Hoadley, the only living witness to the interview, not only corroborates Mrs. Plant, but emphatically asserts that the fact of his having become a resident of New Haven was ‘never mentioned’ by Mr. Plant. She also gives a very credible account of Mr. Plant’s ‘jokingly’ referring to boarding with her, credible because of their previous relations, and because of his announcement almost in the same breath that ‘he was going home that afternoon’ to New York.

The defendants rely on the statements to Mrs. Hoadley as  [*666]  and that done he set out shortly after two o’clock, in company with Mr. Harrison, to perform that which the defendants designate as the second overt act. They went to the house of a Mrs. Hotchkiss, located in the immediate vicinity of the office. Up to that time Mr. Plant had never been inside of it. On the tenth of June, ten days previous, however, he had, together with Mrs. Plant and Harrison, driven around New Haven looking at various houses from the outside, but without leaving the carriage, and among others the Hotchkiss house had been pointed out by Mrs. Plant as an apparently desirable location. Mr. Plant had asked whether the house was for sale and instructed Mr. Harrison to make inquiries. No offer or price had been made until the nineteenth, when Mrs. Hotchkiss expressed a willingness to sell for eighty-five thousand dollars. This offer was communicated to Mr. Plant on the twentieth, before he went to look at the premises. Arriving there Mr. Plant began by examining the house, Mrs. Hotchkiss and her daughter acting as his guides. These ladies testify that Mr. Plant examined up to the third floor, looking at closets, stairs and cellar, that he inquired whether an elevator could be placed where the back-stairs came up from the basement to the first floor; that he made some statements to the effect that he wanted to use the basement exclusively for an office; that the suggestion was made that he did not need the back-stairs from his office to the first floor, and that Mr. Plant replied: ‘It is my residence, sir.’ This was before there had been any expression on the part of Mr. Plant as to whether or not he was satisfied with the house, and the meaning the defendants would inject into the statement that, as he was going to live there, he needed the back-stairs for his servants, is hardly consonant with the assertion that the first floor was to be given entirely up to business offices. There was also some question about building a vault in the basement. After the examination was concluded, Mr. Plant, according to Mrs. Hotchkiss, asked when he could get possession, and that she replied that it would be very inconvenient for her to dismantle the house during the warm weather, but that he could have full possession by October first. In the meanwhile, however, she could arrange the basement by closing it, so that he could commence work as soon as he wished upon the vault that he spoke of putting in there. According to the defendant Harrison, Mr. Plant asked whether he could ‘come in the last of the week.’  [*668]  be twisted into an assertion of present acquisition of domicile. At that time he had not bought nor expressed a willingness to buy. No details necessary to the consummation of a purchase had been arranged. Everything was tentative. He could not get possession before October first, but might make repairs earlier, but then only in the lower story. Even the commencement of making the repairs, had the transaction progressed to that stage, would hardly, in view of delayed possession of the entire premises, have amounted to a sufficient act. When he left the Hotchkiss house things had progressed no further than that Mr. Plant had seen a house which pleased him at a price which satisfied him. Much was yet dependent on Mrs. Plant. The unconsummated intention is emphasized by a letter which the defendant Harrison wrote at Mr. Plant’s request on the day after his return from New Haven, to the effect that Mr. Plant ‘was well satisfied with the house,’ and that unless notified to the contrary he would come there with Mrs. Plant on Friday. That statement so far from being consistent with ownership that waited merely on the reduction to writing of a contract of sale, showed only that he was entertaining the proposition with much favor.

The two overt acts, the Hoadley and the Hotchkiss incidents, filter down to this. He had arranged with Mrs. Hoadley to board with her some time in the future, but never lived to return; he had arranged to go further into the purchase of the Hotchkiss house and never lived to accomplish it. I am not to consider what he might have done had he lived, but merely what he had done. Boarding, which he never did, and ownership which he never acquired, cannot beget an act however pregnant the intention.

I have left for the last the third alleged overt act—declarations made by Mr. Plant to various persons, that he was a resident of New Haven. He began making these in the defendant Harrison’s office before going either to Mrs. Hoadley or to Mrs. Hotchkiss. The other declarations were made after his return from the Hotchkiss house. Upon leaving there he returned with Harrison to the latter’s office and executed the codicil which in the morning he had directed to be changed. In this codicil he described himself as of New Haven. This description would have probative force had it been based on precedent domiciliary acts; and any force it may have as a declaration is weakened by the fact that on the ninth of June, according to Mr. Harrison, a draft  [*670]  and with the other proven facts in the case, the presence or absence of the suspicion of sinister purpose in making them, * * * enter materially into the estimation of their value.’ Written declarations, like oral ones, must be considered in the light of all the circumstances of the case. While they are prima facie entitled to more weight as being presumably made with greater deliberation, yet even they are within the class that have been designated as the ‘lowest species of evidence.’ Kreitz v. Behrensmeyer, 125 Ill. 197. For this reason as well as for that as being in conflict with acts do I reject as in anywise controlling Mr. Plant’s description of himself as of New Haven in the last codicil and in the deed executed in New York the day after his return from New Haven. These written declarations are, in this case, at least, to be treated like the oral ones. Tucker v. Field, 5 Redf. 139; Isham v. Gibbons, supra; Matter of Zerega, supra; Attorney-General v. Pottinger, 6 H. & N. 733.

I have now examined at length the overt acts, traced Mr. Plant’s movements from the day he left New York until the day he returned, and found nothing in the facts relied on by the defendants to bring about the change of domicile. Were there any doubt in my mind either as to the effect to be given to the Hoadley and Hotchkiss incidents or to the declarations, Mr. Plant’s acts and general conduct after leaving New Haven show such inconsistency with a consummated change of domicile that all doubt would fade. I find not only that there was no animo manendi, but more particularly that he never left New York sine animo revertendi. The original fact that stands out in the whole narrative is that there was no abandonment in law or in fact of his New York domicile. I am not unmindful of the decisions where a man after acquisition of another domicile comes back to prepare for removal or on a visit or pursuant to a desire to spend part of his time in his earlier legal residence. After unequivocal establishment of domicile elsewhere the mere fact of return is quite unimportant. That would, at most, be act only without intention. In this case the fact of return, however, must be read in connection with all the circumstances of the case, and in that aspect reflects seriously both on intent and on act.

I repeat the fact and manner of his return is of prime importance. The New Haven domicile is alleged to have been acquired  [*672]  frequent use of the word ‘home,’ in the sense of giving to it the effect of legal residence, yet it is most significant in pointing his own conception of the pretended change and his own treatment of it as nominal merely. Colloquially, people speak of that place as ‘home,’ which in the overwhelming majority of cases legal construction declares to be domicile.

If Mr. Plant considered himself a resident of New Haven, by virtue of the occurrences culminating on the twentieth day of June in New Haven, I am quite satisfied that his intent was not bona fide. I am not concerned with what further acts he might have performed had he lived. The fact is he made declarations of present acquisition of domicile in New Haven at a time when there had been no actual residence and when there was absence of any sufficient indication of intention of making it his permanent home. It must be obvious that Mr. Plant was acting under the guidance of his Connecticut legal adviser, who directed his steps and prompted to him the declarations he was to make in the attempt to reach the goal. In fact Mrs. Plant testified that the defendant Harrison had several times asserted that the change to Connecticut was a ‘matter of form’ merely. It does not require an extensive search to discover motive. Mr. Plant’s proposed testamentary disposition was invalid under the laws of New York, but valid under the laws of Connecticut. Beyond this very obvious inducement to acquire a New Haven domicile, there are more or less definite items of evidence showing a desire to escape New York burdens of taxation. On the whole record this seems to me to be one of those exceptional class of cases where motive has a not unimportant bearing on the question of domicile. Jacobs Domicil, ¤ 142; Dicey Domicil, 145; 10 Am. & Eng. Ency. of Law, 20; Briggs v. French, 2 Sumn. 251; Butler v. Farnsworth, 4 Wash. 101; Morris v. Gilmer, 129 U. S. 315. I am not considering motive as determining the change of domicile, but merely as reflecting on the bona fides of the intent. Ordinarily the question of motive is quite immaterial in the solution of questions of domicile, inhabitancy or citizenship. The law does not inquire into a man’s reason for changing either his national or municipal domicile. Relief from the burdens of taxation may constitute a very proper motive and one that becomes quite irrelevant if the change, animo et facto, is otherwise established. McConnell v. Kelley, 138 Mass. 372;  [*674]  bona fide intent to reside permanently has been established. White v. Tennant, 31 W. Va. 790, much relied on by the defendants, is in every way an exceptional case, but even as such, not in conflict with the one at bar. The question was the domicile of an intestate, who, up to April 1, 1885, had his domicile in West Virginia. He had sold his farm and given the purchaser possession on that date. Prior thereto he had arranged with other members of his family to move to a farm in Pennsylvania. On the 2d day of April he started for his Pennsylvania house but being overtaken by rain, he stopped at a relation’s in West Virginia, where he died. It is apparent that there was here an unequivocal abandonment of the old domicile, sine animo revertendi. The bona fide intention to reside permanently in Pennsylvania was seized upon to supply the lack occasioned by inability to occupy the future home. He was held technically domiciled there, partly because for purposes of succession a man must always have one legal domicile, and partly because it would have been absurd and impossible to declare that he had two. Having abandoned the one, that could not be his domicile. Being en route ‘for the expressed purpose of making a fixed place his home for an indefinite time,’ that was logically declared to be his legal residence. In Bradley v. Lowery, 1 Spears Eq. 1, there was deliberate abandonment of the South Carolina domicile. In Thayer v. City of Boston, 124 Mass. 132, the question of good faith was properly left to the jury. On a charge, as in that case, ‘which of the two places does he, in good faith and honestly, regard and recognize as the home of himself and his family if he has one,’ it seems that a jury in this case, under proper instructions, could hardly go astray and declare Mr. Plant domiciled in New Haven.

In Bell v. Kennedy, L. R. 1 Sc. App. 307, 319, there was at least a ‘short residence.’ So in Craigie v. Lewin, 3 Curt. 435, 448, one day is recognized ‘sufficient, provided the animus exists.’ And similarly in these cases: Moorhouse v. Lord, 10 H. L. Cas. 272; Johnson v. Bales, 2 Paine, 601, and McLean v. Janin, 45 La. Ann. 664.

In Marks v. Marks, 75 Fed. Rep. 321, there was an abandonment of a Tennessee domicile and a mere arrival in Texas, the domicile of origin, was held sufficient, even though there had been no location at a particular point. Arrival, however, physical  [*676]  in New Haven with an intent that was not consummated even if bona fide, and a motive that was ulterior. The facts presented a case where probate proceedings unhesitatingly should have been instituted here. They were had elsewhere, and the immediate legal question for consideration is whether the erroneous assumption of jurisdiction by the Connecticut courts has concluded our own from taking action and declaring the correct domicile of Mr. Plant whatever the resultant consequences of such legal pronouncement may be.

What, then, is the scope and effect of the record of the New Haven probate proceedings before me?

The defendants urge with plausibility that the decree of the Probate Court for the district of New Haven, admitting the will of Mr. Plant to probate as the will of a domiciled resident of Connecticut at the time of his death is a bar to this action, and that in the absence of some direct attack, setting aside or reversing the Connecticut proceedings, the decree is proof against collateral attack in this court. Their forceful argument may be briefly outlined as follows:

The plaintiff herself invoked the jurisdiction of the Connecticut court and signed the petition for the probate of her husband’s will. The Probate Court of Connecticut thus had jurisdiction of the person. Having general jurisdiction over the matter of the probate of wills it had jurisdiction of the subject-matter. An erroneous exercise of jurisdiction is not equivalent to judicial action without jurisdiction; the former can be attacked only by a direct proceeding for reversal, the latter is invalid wherever the action is invoked. So in this case an erroneous conclusion on the question of domicile does not divest the Probate Court of jurisdiction over the general matter of wills and can, therefore, be rectified only by some direct proper review of his decree, for the question of Mr. Plant’s domicile at the time of his death was in no sense a matter going to the jurisdiction for the probate judge over the subject of the probate of wills but was a question which, in the exercise of his jurisdiction, he was judicially to determine. He was to determine judicially what may be termed quasi-jurisdictional facts without allegation and proof of which the court could not be set in motion. Where there is jurisdiction of the person and general jurisdiction of the subject-matter, the court then has the power to pass upon the quasi-jurisdictional facts involved  [*678]  sister State judgment is to receive the same ‘faith and credit’ that it has in the home forum. We may not give it less effect than in the forum of its rendition. We are not required to give it greater. In fact we may not. Board of Public Works v. Columbia College, 17 Wall. 521; Robertson v. Pickrell, 109 U. S. 611; Suydam v. Barber, 18 N. Y. 468; Wood v. Watkinson, 17 Conn. 500. In the first case in which the decree of an inferior State court was relied on in another jurisdiction as establishing the undisputed debt necessary to the maintenance of an action, the court refused to treat the decree as final, where the appellate court in the original jurisdiction had regarded it as interlocutory merely. ‘No greater effect can be given to any judgment of a court of one state in another state than is given to it in the state where rendered. Any other rule would contravene the policy of the provisions of the Constitution and laws of the United States on that subject.’ At page 509. ‘No case can be found,’ say the court in Suydam v. Barber, supra, ‘where a greater effect is given to the judgment of any state in the courts of another than belongs to it in the state where it was rendered.’ Wood v. Watkinson, supra, states the rule clearly, as applicable to the case at bar. Where there is no objection as to validity on the ground of want of jurisdiction ‘it is well settled, that no greater effect is to be given to it than it would have in the state where it was rendered. It has no higher dignity in any other state than in the one where it was pronounced, and hence, if in the courts of the state where the judgment was rendered, it is inconclusive or if it is enquirable into there, during a particular period, or on certain conditions, it will be open to investigation, to the same extent, everywhere else.’ At page 505.

There being no distinction between foreign and sister-State judgments as a cause of action or as a defense (Black Judg., ¤ 826), we have now to examine the status of the Connecticut law. The decree of the probate judge of New Haven, admitting the will of Mr. Plant to probate as the will of a resident of New Haven, is conclusive here if it is conclusive there. If a collateral attack can be made upon it there, then such an attack can be made here with the resultant consequence of declaring his correct domicile, as I have declared it, and of admitting his will here as that of a resident of this State at the time of his decease. The faith and credit given by law and usage by the Connecticut courts to a  [*680]  proved and true.’ The decree concluded by appointing a conservator. On the trial the court admitted this record in evidence, holding, however, that it was not conclusive upon the jurisdictional facts, but only prima facie evidence, and that the plaintiff being a stranger to it might prove that the defendant was not a resident of the district, and that the statutory notice had not been given to him. Upon parol evidence offered by the plaintiff, the court found that, at the time of the service, the defendant resided at White Plains, in New York, and that, therefore, no notice had been left at his usual place of abode. The appointment of the conservator was consequently held invalid and no bar, and judgment was rendered for the plaintiff. The judgment was affirmed by the Supreme Court, and in so doing it directly sustained the collateral attack on the conservatorship proceedings in the Probate Court. The argument was, briefly, that no presumption existed in favor of a court of limited and inferior jurisdiction, and that a person who would avail himself of the judgment of such a court must aver and prove the facts necessary to give it jurisdiction; that it was ‘most obvious’ that the Probate Court of the district of Plymouth could not appoint a conservator over a person who did not reside in the district, nor until notice and summons by copy had been left twelve days previously at the usual place of abode of the defendant; that the defendant did not so reside nor had the notice and copy been so left; that the defendant was, therefore, not within the jurisdiction of the court, nor duly summoned and made a party to the proceeding, as required by the statute, and could, therefore, not be concluded by the ex parte proceeding. Summing up its reasoning, the court places its conclusions on the precise ground ‘that a court of probate, in appointing a conservator, can proceed only in the case specified in the statute and in the manner there prescribed, leaving those jurisdictional facts open to inquiry and disproof.’

It is to be observed that in that case the Probate Court had general jurisdiction on the subject-matter—conservatorship proceedings—and that the finding in the decree appointing the conservator, to the effect that the court had ‘inquired’ into the fact of the incompetent’s residence and into the due service, and had found both true as alleged in the petition, was in no wise questioned. Though on the face of the decree the court had inquired into the jurisdictional facts and passed upon them in the  [*682]  considering the authorities which have been read to us on the trial, we have a strong impression that such is not the law.’

The court then proceeds, by argument, from principle and authority to support this dictum, but concludes by placing its decision on the more precise ground above quoted. That ground must be held to have established for the courts of Connecticut, at least, this proposition: In the case of that limited and inferior court, known as the Probate Court, which does not proceed according to the course of the common law, the question of domicile, declared after inquiry, and made the basis of the appointment of a conservator, can be attacked collaterally in another proceeding. Anybody relying on that judgment or decree must prove the jurisdictional facts and disproof of them in any proceeding invalidates the court’s pronouncement.

I have examined this case at some length because it is the foundation authority for the rule on which this decision depends. It is authority for the proposition that the decree of a court of probate may be collaterally attacked for want of jurisdiction after inquiry, and it foreshadows the later doctrine that under no circumstances can a court of probate conclusively determine the facts giving it jurisdiction, whether those facts be quasi-jurisdictional or otherwise.

Let us now turn to the development of the rule.

The next case in the point of time is First National Bank v. Balcom, supra. There the principal question was the domicile of a decedent. Her administrator claimed it was in Connecticut, as against the claim of the administrator of the estate of her husband, who claimed it was in New York. In letters taken on both estates in Connecticut, on the ground of property within that State, the decree in each proceeding described the intestate as domiciled in the State of New York. For aught that appears in the report of the case, the decree was made ex parte in each instance. A collateral attack was permitted and the decedent’s domicile declared to be in Connecticut.

‘Again, it is claimed that the court of probate for the district of New Haven granted letters of administration on the estate of Mr. Lewin as domiciled in the state of New York; and it is insisted that this is conclusive on the subject. But the judgment of a court of limited jurisdiction is never conclusive of a jurisdictional  [*684]  The evidence was rejected on the ground that that was not the proper time to test the question of the jurisdiction of the Probate Court and the doings of the commissioners were therefore affirmed. On appeal to the Supreme Court of Errors, the judgment of the Superior Court was reversed. The fact of residence was treated as a strictly jurisdictional fact. ‘It is for the interest of the court * * * to know as early as possible that it has no jurisdiction, if such be the fact. If the information does not come early, it must not be rejected if it comes late. Whenever and however it comes, it should be received as the suggestion of an amicus curiae and the proper legal action promptly taken.’ At pp. 114, 115.

It was urged that the commissioners could not pass upon the question of their own jurisdiction, nor upon that of the Probate Court, and that, therefore, there was no power in the Superior Court to consider the question. After arguing that even the commissioners would have power to entertain the collateral attack as to the fact of residence, the opinion proceeds on the concession that they have not, and yet finds the power of the Superior Court unaffected to entertain the attack. ‘The attention of the court being called to it, one course only could be lawfully taken, that is to dismiss the case. If one party, or if both parties, insisted upon a judgment on the merits, it would make no difference, the court could do nothing lawfully but dismiss the case.’

The court cites with approval the rule that ‘want of jurisdiction, especially of a court of limited and special jurisdiction, cannot be aided by any waiver of exceptions or even by express consent. If this is true in ordinary cases, it is so a fortiori, in a case of a Probate Court decree granting administration.’ While reasoning independently of Sears v. Terry and First National Bank v. Balcom, the court quoted them as recognizing the same principles.

The limitation noted on the consideration of those two cases, to the effect that the initial proceedings involved in the assumption of jurisdiction were ex parte, cannot be held to obtain in the Olmstead case despite the defendants’ insistence to the contrary. That was not an ex parte proceeding for the appointment of an administrator, but a proceeding based on a will proved in the regular manner. The appeal was taken by William W. Olmstead, the son of the decedent Joseph Olmstead, and the former, according  [*686]  party who avers jurisdiction’ (O’Donoghue v. Boies, 159 N. Y. 87) and so in other jurisdictions. Reinach v. Atlantic & G. W. R. Co., 58 Fed. Rep. 33; Irwin v. Scriber, 18 Cal. 499; Bostwick v. Skinner, 80 Ill. 147; Noble v. Union River Logging R. R. Co., 147 U. S. 165.

It is unnecessary to consider the nice question what ‘litigated’ in a suit means, as the Culver case is Connecticut authority for a contrary proposition so far as the Probate Court is concerned.

In Culver’s Appeal from Probate, one Adye, who had been a settled inhabitant of the town of Seymour within the probate district of New Haven, where a conservator of his person and property had been appointed, moved into the probate district of Woodbury, with the intention of making that town his permanent home. After Adye’s death in Woodbury, the Probate Court for the district of New Haven appointed the appellant Culver administrator on the basis of continued residence in Seymour under the conservatorship proceedings theretofore had in that district. Thereafter his will was offered for probate in the Woodbury district. Culver objected to the probate, put in evidence proof of his appointment as administrator in New Haven, claimed that under that decree Adye’s residence was found to be in Seymour, and that so long as the decree stood unreversed the Woodbury court had no jurisdiction in the premises. The Woodbury court, however, held itself not bound by the prior decree, and after a full hearing found that the testator last resided in Woodbury. Its judgment was affirmed both in the Superior Court and in the Supreme Court of Errors, thus sustaining the clearest sort of collateral attack. There the argument made by the appellant, barring the question of party character, was the same as made here by the defendants. In the opinion in the Culver case the court summarizes that argument as follows: ‘Any court has the power to decide the facts that give itself jurisdiction. Such power is essential to the existence of the court; and a finding of jurisdictional facts by any court is final unless set aside by some regular proceeding. It cannot be treated as a nullity. The court of probate in New Haven had decided the question of Adye’s residence, and the court in Woodbury was bound by that decision so long as it stood. That question was res adjudicata.’

The court having stated the objection answered it thus: ‘This argument entirely ignores a well-settled distinction between judgments  [*688]  of law for the court (Bank of China v. Morse, 168 N. Y. 458), this is a case where they are in harmony and where the testimony clarifies a difficulty suggested by the defendants. In this connection it is instructive to note that in at least one of those few jurisdictions where a rule similar to that of Connecticut is followed, the court argumentatively referred to a case where all the parties were before the court. And even after stating that there was much to commend conclusiveness of the decree against collateral attack in such a case, the court laid down a general rule for all cases, regardless of party character, and cited the Culver and Sears cases in support of its view. The rule is made to turn upon the principle that it is inconceivable how the court can acquire jurisdiction by simply deciding that it has such, when the circumstances which are necessary to give it do not exist. People’s Savings Bank v. Wilcox, 15 R. I. 258.

The reason for the Connecticut rule will, perhaps, be better understood if the course of development of Probate Courts be briefly referred to.

The origin of our Probate Courts is traced back to the Ecclesiastical Courts of England, the jurisdiction of which was practically limited to the probate of wills, the granting of administrations and the suing for legacies. 3 Black. 95-98. In every other respect the control of estates, executors and administrators was exclusively in the Common Law and Chancery Courts. As Judge Woerner puts it in his invaluable treatise (The American Law of Administration): ‘It should, therefore, be remembered that there is a very great difference between the totality of the powers exercised by the English courts in connection with the administration of estates of deceased persons, sometimes called testamentary or probate jurisdiction, and the testamentary or probate jurisdiction of Ecclesiastical Courts—a distinction which is of the utmost importance in ascertaining the conclusiveness of the judgments and decrees of the several classes of courts in collateral proceedings.’

Now in this country Probate Courts, since their first establishment in Massachusetts in 1784 (R. S. 1784, chap. 46; Wales v. Willard, 2 Mass. 124), were patterned after the English models. But in the great majority of instances they have outgrown their limited and inferior jurisdiction as mere statutory courts deriving their sole authority from legislative enactment and have developed  [*690]  any presumption in favor of their decrees unless the jurisdictional facts appear on the face of the proceedings, and even then their decrees are prima facie evidence only, subject to collateral attack and disproof.

To return to the Connecticut cases.

The rule I have deduced from the four cases examined has not been affected by section 436, embodied in the revision of 1885, subsequent to the date of the decision in Culver’s Appeal. That section reads: ‘Every order or decree of a Court of Probate made by a judge who is disqualified shall be valid unless an appeal be taken therefrom, as hereinafter specified and no order made by a court of probate upon any matter within its jurisdiction shall be attacked collaterally except for fraud, or set aside save by appeal.’ Gen. Stat. Conn. 1888, tit. 13, chap. XII, ¤ 436. That this section is but a re-enactment of the previous common law of Connecticut has been affirmatively held in Mallory’s Appeal from probate. 62 Conn. 218; and see Gallup v. Smith, 59 Conn. 354, 361. What is a ‘matter within its jurisdiction’? I think the preceding analysis has sufficiently shown that where the domiciliary fact does not exist, the matter is not within the court’s jurisdiction, and that under the rule prevailing in Connecticut it is quite immaterial under what circumstances the court made its erroneous decision on the question of legal residence. Much of the difference between the plaintiff’s and the defendants’ construction of the Connecticut cases and statutes will be reconciled when it is remembered that the facts concerning residence, now generally regarded elsewhere as quasi-jurisdictional and consequently collaterally invulnerable, are in Connecticut treated as jurisdictional purely. Their absence makes the judgment not merely voidable but absolutely void. Unlike our New York decisions (Hunt v. Hunt, 72 N. Y. 217; Kinnier v. Kinnier, 45 id. 535; Bolton v. Schriever, 135 id. 65) a matter within the jurisdiction, so far as subject-matter is concerned, requires, in the case of Connecticut Probate Courts, though not in the case of their courts of general jurisdiction, something more than the ‘power lawfully conferred to deal with the general subject involved in the action.’ Hunt v. Hunt, supra. The power to deal with the subject does not exist unless there was actual residence in the probate district. That is a fundamental jurisdictional datum, the inquiry into which cannot be foreclosed by a mistaken decision on the fact. In other  [*692]  the series examined and may be further distinguished on the ground of the superiority of the court of ‘competent jurisdiction’ and because there had been distribution as a consequence of which the administrator’s action was protected. In this case, so far as appears, no distribution has been had. It is also important to observe that no question of title was involved in the Phelps’ case.

Mention should, perhaps, be made in conclusion of the case of Penfield v. Savage, 2 Conn. 386, because, in the light of Culver’s Appeal, it shows extremes of the law. Although not proved on the trial as one of the authorities of Connecticut, it is well to refer to it, especially in view of a recent supplemental memorandum submitted by the defendants. They refer to language in a concurring opinion to this effect: ‘Every court of limited jurisdiction has right to ascertain the facts requisite for the exercise of its jurisdiction. * * * The truth of the fact found cannot, collaterally, be the subject of inquiry.’ Even were this the law of the case, it would only be necessary to read the quotations herein given from Culver’s Appeal, to show how completely the court had reversed itself. But the extract quoted from the opinion of Hosmer, J., whatever may be my own view as to its legal soundness, cannot be treated as more than mere dictum. This decision was rendered in 1818, and was a case in which it was sought to hold a guardian personally liable in an action for debt on account of necessaries furnished the ward. The first opinion in the case, that of the chief judge, places the decision squarely and solely on the ground that the defendant had incurred no liability whether she was or was not the lawful guardian of the infant. In that view it became immaterial whether the guardian had or had not been properly appointed in the first instance.

I have been unable to find anything in all the Connecticut authorities I have examined to alter either my construction of Sears v. Terry, First National Bank v. Balcom, Olmstead’s Appeal and Culver’s Appeal, or my conclusion that they are to-day controlling law in the State of Connecticut.

Therefore, I am of the opinion that the will of Mr. Plant should be established in this jurisdiction as that of a resident of the county and State of New York at the time of his death. Judgment accordingly