The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1895-07-19

An manifested Photographic Will, valid by
the laws of a 70 eign state In whit h the
testator was domicIled at the time OF
his death, may be admitted TO ancillaTy
probate here, Notwithstanding Section
1865 of the Civil Code.
Such ancillary probate may be allowed
here after the expiration OF five wears
from the death OF the testatOr notwith-
standing Section l474 OF the Civil Code.
OPINION OF THE COURT BY FREAR, J.
On June 3, 1868, the decedent ex-
ecuted an manifested will wholly In
his own handwriting. On Septem
Der 5, 1883, he died in San Francisco,
California, being then domiciled
there. On September %, 1883, the
will was admitted to probate in the
Superior Court, Department 9, for
the city and county of San Francisco,
a court of record of general probate
Jurisdiction. On April II, 1895, the
petitioner herein applied to Circuit
Judge of the First Circuit for admis-
sion of the will to probate here upon
an authenticated copy of the record
of the probate court of San Francis
co, and for ancillary letters of admin
istration with the will annexed, the
object being to qualify the petition
or to bring an action here to recover
the unpaid balance of a judgment
obtained by the decedent prior to his
death in California against one now
residing in these islands. The Cir
cult Judge found that the will was
not entitled to probate under our
statutes, and this appeal from his
order Is based solely on the follow
ing questions of law.
First, may an manifested holo-
graphic will valid by the laws of a
foreign state, where the testator was
domiciled at the time of his death, be
admitted to probate here, for the pur-
pose of operating upon personal
property, Notwithstanding the provis-
ion of our statute (Civ. Code, Sec
1869 that mo will + shall
be valid, unless + + attested
by two or more competent witnesses
subscribing their names to the will?"
Personal property follows the per-
son (B1ObiLiG sequuntur PersOndDl); In
other words it is regarded in law as
being In the place of its owners
domicile, wherever it may be in fact.
The validity of will, therefore, with
reference to personal property, Is
determined by the Ter dontciIii, and if
the will is valid by the law of the
place where the testator was domicil-
ed at the time of his death, it is valid
everywhere. Story, Conflict of Lave,
Secs. 465 ct seq; Enohin V. Wylie, 10
III. J.. Gas. 1.
AoaOr11n1lu
ed Photographic will was held admis-
sible to probate in the State of New
York, though by the laws of that
state two subscribing witnesses were
requisite to the validity OF will. In
re Delaplaine, As Hun 225, referred
to in 10 Am & EGG. Enc. ia. And
In Manuel V. Manuel, Is Oh. st. ASS,
a Photographic will, void by the laws
of Ohio because manifested, but
valid by the laws of Louisiana,
where it was made, was held invalid in
Ohio, solely on the ground that the
tastator was at the date of his death
d Jmiciled In Ohio, though temper
arily resident In Louisiana at the
date OF his will,-the court conced-
ing that the will would have been
valid il the testator had been domi-
ciled in Louisiana at the time of his
death.
Secondly, notwithstanding the
provision OF our statute (Civ. Code,
Sec. 1474) that No written will shall
be allowed to be proved after the ex-
piration of five years from the death
of the testator" Excepting where a
minor is interested in the estate),
may a foreign will be admitted to
sncillary probate here after the ex.
piration of such period, it having
been admitted to original probate in
the state of the testator's domicile |
within that period?
1t seems TO US that the statute was |
intended only to limit the time with |
In which original proof might be |
made, and that it does not apply to |
cases of ancillary proof.
Ancillsry proof. indeed, Is not so |
much proof of the will as proof that |
the will has already been proved. 1t
consists chiefly In the production of |
an authenticated copy of the record |
OF court of competent Jurisdiction, |
and not In the production of witness
ses as In the case of original proof. |
Its object IS not to establish the will, |
but to furnish the administrator with /
proper formal evidence of his auth
ority to enforce rights which have al
ready become established under the
will elsewhere.
The statute is, no doubt, based on
the presumption that if there is a
genuine will In existence, those in
terested will discover it and offer it
for probate with reasonable diligence.
and is designed to prevent the set
ting mp of documents purporting to be
wills st times so remote that it might
be impossible to obtain the evidence
to show that they were not
entitled to probate. This object
would be effected by original proof
of the will elsewhere as Well as here.
l.