Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1868-04-23

Decision OF the Supreme Court OF Ten
nessee, at Nashville, December Term

1897.
Reported for the Union and Dispatch. by s. j.
Henderson, Attorney at Law.
Thomas C. Williams %. w. A. Glenn. Judge,
etc. et al
(Concluded)
Werecognize the principle Of this case o. con
tanning the question under consideration and
~ established law, sustained by an overwhelm-
ing weight Of authority and in perfect harmony
with the structure Of our government. Amy
other doctrine would be at war with the nation
Al comfy that everywhere prevails between in
dependent States and nations. IL not in conflict
with the Constitution Old the United States.
which requires that the acts and judicial pro
ceedings IN one State shall be respected in the
courts and tribunals Of others, Article Sec. ]
Constitution U. S. CTeppen o.. Dexter u Gray's
$50, Christmas -. Russell VOL. 298.
II follows. therefore. that so far A. the will in
question purpOTts 20 dispose Of personal proper
ty, the probate court Of the dOmicil Of tbs tes-
tatriX had the exclusive jurisdiction 10 decide
upon rs validity or inyalidity, as n will Of per-
sonal property. aud as such u was not open for
contest ~ the courts Of Tennessee. The iudg-
ment or decree Of the Register Of iWlls" being
n tribunal Of competent jurisdiction, aud in the
nature OF proceeding ia rem, Is necessarily con-
elusive and binding upon all persons interested
In the property % be administered, until the
same is reversed, annulled or set aside by
proper proceeding in the judicial tribunals Of
the dOmicil Of thetestatrix.
As 20 the effect the judgment Of the Circuit
UisaDcf Uei non. which Is incidentally referred 10
IN the answers of the defendants, we do not feel
called upon TO say more than 10 remark that il
cannot be held 20 yacate the Judgment of Dro-
bate in the court of PennsylvaDig. go FAR as The
will assumes 70 dispose OF the personal proper
" Of the testatriK. What its effect might be AZ
will conveying real estate in Tennessee, we
iced not now determine, rs the record Of that
case = not before us, in this proceeding. in any
uch form as enables us 10 pass upon the validi-
sy or inyalidity Of that judgment.
2. There can be but little doubt as to tbedom-
icii Of the testatrix at the time Of her death
The proof shows that she was born and raised
in the State Of Tennessee; Ut il is equally ap-
parent that her husband was aresident of Penn
such case the domicil Of the husband draws 10
% the domicil Of the wife. MltliereH Qaandiu
HuDfd ssf tacdtdm cusdem ciD5iifati8 Uideri Gu
yus 'aorifHs CUE esf; Storys Conft., sec. 46. 1893
True, the husband IS shown 20 have been in
the army Of the United States when he was
married but the fixed residence Of his parents
was IN the city Of Philadelphia, which he does
not appear 20 have abandoned nnfan 55qUeDdf
lie had no other fixed domicile than the home of
has parents; and although the record shows he
had floating intention after his marriage TO To-
cate m Tennessee. be does not appear 20 have car
ried that intention into execution. The law fixes
has domicil In the city Of Philadelphia and be
ls presumed to hold that domicil until another
~ obtained, and to constitute 3 change OF domi-
cll, the TACT must concur with the intention
EXIT ect;, %. Pardu and Wife. Swan 232
w hlte ~. White Head 404: Allen o. Thorn
ton. II Hum. $50; Foster 0s. Hull and Eaton, 4
Hum. Si8.
B. This brings as to the consideration Of the
third and last proportion insisted on in argu-
ment; and that IL, whether or not the Circuit
Judge erred IN refusing TO grant peremptory
WGUdGmHs 10 the Judge of the County
Court commanding him to receive and re-
cord the certified copy Of the will Of the
testetrl1, and 70 issue letters testamentary
thereon; In England, the writ Of muHdamus
was highly prerogative writ, issuing in the
kings name from the Court Of Kings Bench,
and directed 20 any person, corporation or in
Terror jurisdiction within the Kings dominions,
requiring thom TO do some particular thing
therein specified which appertains 10 their Office
and duty, and which the Court of Kings Bench
mas previously determined, OF az least supposes
70 De consonant TO right and Justice. IL was a
writ Of q most extensively remedial nature and
commonly issued when the injured party had
nc other remedy; but in some cases il was issued
when he had also another but more tedious
method Of redress. Blac Com, 10.
In general the writ in this country issues un.
der constitutional or statutory regulations, but
it has lost bat few. II any, OF its ancient and
remedial incidents, and Is stiil governed By the
com mon law rules. Kentucky %. Dennison, q
Howard GO. Il Is as general principle rssorted
10 70 prevent disorder from failure Of Justice,
and viii lie in all cases when the law has estab-
ilshed no adequate specific remedy, and when in
Justice ard good government there ought 10 be
one; Moses on MRndamus, Il, Is.
But the law makes a distinction between min
lsterial and judicial duties. 10 the former case
the particular duty imposed may be compelled,
while m the latter judicial officer when he fails
OF refuses 90 net, can be compelled TO proceed
and render some Judgment in the case before
him hut the court issuing the writ will not
direct him hcw g proceed or what judgment 70
render that u left 60 has own high sense Of duty
as a Judicial officer. He will be compelled 20
act 90 discharge has duty, otherwise there would
be failure Of duty. In this case IL is insisted
on the one hand, that the receiving, Cling, ami
recording Of the viii under confederation is
merely ministerial and net a judicial act: and
on the other. that Il Is judicial act from which
an appeal lies TO the Circuit Court Il is clear.
when an authenticated copy Of foreign viii is
presented 20 the County Court, under our statute
Code PISA. that the ordering Of il TO be filed sod
recorded is not a matter Of course, The County
udge has something 90 do, some legal discre-
ton 60 exercise. He must determine whether
the paper presented is duly authenticated &C
cording tothe act ofCongress; whether the court !
Ia which the viii purpOrts 70 have been allowed |
had NEUTRALITY-SUSPICIOUS. there is any estate in |
has county on which the will may operate, and !
II u contains a devise Of real estate. whether |
under our statute, il has been proven before |
accordingt 60 the laws Of this State
Code 2ls2 3, 4, = also. Creppen %. Dexter
TRANCE H. 800 8a
Il might be and we think Il probable, under |
the Code Rec. 3lf7. when the County Court has |
made aud formally entered upon lis records a |
hnh Judgment or decree. embracing the |
foregoing points. or such others, If any. IS may
he lawfully within its iurlsdi elton. that an APP
peal would lie from such final judgment OF de- /
cree 90 the Circuit Court. But in this case no /
such final Judgment or decree appears 60 have /
been entered on record. The existence Of he
order a. Gears only in the petition and answers
Of the parties. IL a. said 10 was afterwards /
actually entered fvfBse pro tenn, but the record |
before us does not show the fact. consequently |
there was nothing OF record from which the re- /
lator could appeal.
But be this as 10 may. the order is act /
out in the Pleading, and the facts con
tnlned m the petition and admitted in an
swer contain every essential fact necessary /
90 authorize the County Court 90 receive file i
and record the authenticated copy Of the viii /
prevented, and O. issue letters testamentary /
IhoreOn.
Assuming therefore, that the County judge
acted as Judicial tribunal and having found Il
All the facts necessary 20 Judgment or decree. /
~ that the judgment OF decree would be nothing
bat the conclusion Of law upon the facts the /
entenng up OF the proper Judgment must be re-
zRrdca as IN its nature ministerial aud in the |
absence Of every other adequate specific rene
iyt a niaadamas would be the proper method Of
redress; Moses On Mandamus %. 81 Ruel
Morse; petition ~. Pick h. 4d3 nclauy 49, |
Sodden, ~ 0rattRn, Nirginia PCS: City Of Cali |
aa r. Amy, W al 5OA. and authorities cited.
Now in this case. without the Judgment or |
iocrce Of the court. on the record. how would /
IN sppcal lie? and If taken. what would the re-
crsing tribunal have before II mon which 10
pronounce jadgmcnt2 We Rpprehcnd all other /
questions out Of the way, 10 could DO nothing |
,ut dismiss the appeal. IL follows, therefore |
rom n revision Of the whole case, that the iudg- |
nent Of the Circuit Court mus be reYerscd |
-. Al