Kurtz v. Stenger

Shehan, J., delivered the opinion of the Court. This is an appeal from an order of the Orphans’ Court of Garrett County passed on the 23rd day of June, 1935. John W. Kurtz, an infant, by his next friend and mother, Nora W. Kurtz, filed a petition in the Orphans’ Court of Garrett County, wherein it is alleged that John Kurtz, late of Garrett County, died on or about the 12th day of February, 1935, leaving his infant son, the petitioner, and his widow, surviving him, and that the last will and testament of John Kurtz was probated in Cambria County in the State of Pennsylvania, and that a certified copy of said will was filed in the Orphans’ Court of Garrett County; that under said will one-half of the estate went to the sister, brother, nieces, and nephews of the testator, and that John Kurtz was a resident of Garrett County, Maryland, and charging that the probate of said will in the State of Pennsylvania was null and void, and letters testamentary granted thereon by the court in Cambria County were of no effect. The petition further states that the paper writing so probated was not the will of John Kurtz, and that the said John Kurtz died intestate, and that the said John Kurtz was not of sound mind and capable of making and executing a valid will or deed, and that the paper writing was procured by undue influence exercised and practiced upon him by the executors named in said alleged will, and by a sister, Elizabeth Me ⁵⁵⁶ Gough, and praying that Albert Kurtz and Albert W. Stenger be required to answer the premises, and that the order admitting the alleged will to probate be annulled and set aside, and that the letters testamentary granted the alleged executors be revoked.

In a subsequent petition it was alleged that John Kurtz lived at McHenry, in Garrett County, Maryland, at the time of his death, and prayed that an order might be passed for taking testimony to determine the residence and domicile of the deceased, at the time of his death. Upon this petition an order was passed setting the matter down for hearing. Albert W. Stenger had been appointed ancillary administrator of the last will of John Kurtz, deceased, by the Orphans’ Court, and he filed an answer denying the right of John W. Kurtz, the infant, to bring into question the domicile of John Kurtz, deceased, and admitting that the will of John Kurtz had been admitted to probate in Cambria County, Pennsylvania, in accordance with the law of that state, and that the question of his domicile was conclusively determined thereby; that a true copy of the will was filed in the Orphans’ Court of Garrett County to be recorded, and for such purposes as are prescribed by law (Code, art. 93, sec. 364) ; that no action has been taken in said court to attack the validity of the act of the register of wills in accepting and filing the copy of said will and testament; and that the Orphans’ Court of Garrett County has no jurisdiction to hear and determine the question of the domicile of said deceased; and that the averments in said petition are insufficient to make out a case which the court has jurisdiction to hear and determine under the testamentary law of this state; and further avers, without waiving the question of jurisdiction, that John Kurtz, at the time of the execution of said will, and at the time of his death, was a citizen and resident of the State of Pennsylvania and domiciled therein. There was a replication joining issue upon the allegations contained in the answer.

Upon a motion to dismiss the proceedings, the court concluded that before passing upon the question ⁵⁵⁷ it desired to hear testimony; whereupon a number of witnesses were examined, principally with relation to the residence and domicile of said John Kurtz, and the Orphans’ Court concluded that John Kurtz, at the time of his death, was domiciled in Cambria