tion of fact, is often one of great difficulty to determine. Yet, in contemplation of law, every one has a domicile somewhere, because upon it generally depends his personal status, rights and duties, and the disposition of his property after his death. Abington v. North Bridgewater, 23 Pick., 176; Mitchell . United States, 21 Wall., 351; Desmare v. United States, 3 Otto, 609. Furthermore, a person who, in contemplation of law, has a domicile, may nevertheless, as a matter of fact, be a mere wanderer and not an inhabitant of any place.

Upon this view of the law I do not think that Perkins can be considered an inhabitant of Jackson county at the time of his death, nor indeed of any county in the state. As a matter of fact he had ceased to reside in Jackson county and was journeying through the state to California. Therefore the power to grant letters of administration upon his estate belonged to the court of the county, if any, of which he was an inhabitant immediately before his death. He was an inhabitant of Jackson county before his death, but I doubt if he was immediately before. Immediately means without anything intervening the very opposite of mediately. In this statute it signifies that the administration shall be granted in the county of which the deceased was an inhabitant at or last before his death.

The six weeks immediately preceding his death Perkins lived in Marion county, and although he did not intend to remain there permanently, but only until his mother could obtain the means to get away with, yet I am inclined to the opinion that that was the last county he was an inhabitant of before his death; if it was not, then Jackson county was.

§ 120. Grant of letters of administration cannot be collaterally attacked. However that may be, I do not think Perkins was an inhabitant of Multnomah county at the time of his death, and therefore as a matter of fact the county court of that county was not authorized to grant letters of administration upon his estate. And this brings us to the consideration of the principal question: Can the decree of the county court granting the letters of administration to Davis be attacked collaterally?

By the constitution of the state (art. 7, secs. 1, 11 and 12), it is provided in effect that the county court shall be "a court of record having the general jurisdiction"" pertaining to probate courts," to be limited by law; and by section 869 of the Civil Code it is declared that such court "has the exclusive jurisdiction in the first instance, pertaining to a court of probate to grant and revoke letters of administration."

In Tustin v. Gaunt, 4 Or., 305, the supreme court of the state held that the county court, in exercising the jurisdiction pertaining to probate courts, is a court "of superior jurisdiction, as contradistinguished from courts of inferior and limited jurisdiction;" and that its "judgments and proceedings," when questioned collaterally, are entitled to all the presumptions of law in favor of their legality that pertain to the judgments of superior courts.

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In the case of a judgment of a superior court - a court of record — the law presumes that, the court had jurisdiction unless the contrary appears; and in the courts of the same state it has usually been held that unless the contrary appears from the record of the case it cannot be shown at all. In other words, the validity of the judgment, and the jurisdiction of the court that pronounced it, must be tried by the record alone. But the record of a judgment of a court of a state may be contradicted in the courts of a sister state or the United States as to the facts necessary to give jurisdiction, and if it be shown that

such facts did not exist, the record, notwithstanding its recitals to the contrary, is a nullity. Thompson v. Whitman, 18 Wall., 457; Pennoyer v. Neff, 5 Otto, 714. And the same rule has lately been applied by the New York court of appeals to domestic judgments. Ferguson v. Crawford et al., 70 N. Y.,

253.

Assuming this to be the rule governing this case, the contention of the libelant is: 1. The county court of Multnomah county had not jurisdiction to grant the letters of administration upon Perkins' estate, as it did, unless he was an inhabitant of such county at and immediately before his death. 2. It appears that Perkins was not ever an inhabitant of said county; and 3. Therefore the court acted without jurisdiction, and this fact may be shown to contradict the record of Davis' appointment, and thereby destroy its validity.

§ 121. Facts conferring jurisdiction to grant letters of administration. Upon what fact or facts the jurisdiction of a court to grant letters of administration upon the estate of a deceased person depends is a nice and vexed question, upon which the authorities are in direct conflict.

At common law, the grant of letters by the bishop, when, by reason of the locality of the bona notabilia of the deceased the equivalent of inhabitancy the power did not belong to him, was void, but when made by the metropolitan, under like circumstances, it was only voidable. Toller on Ex., 53.

In Massachusetts, in Cutts v. Haskins, 9 Mass., 543, it was held that the grant of administration by a judge of probate on the estate of a deceased person, not at his death an inhabitant of the county in which such administration. was granted, was simply null and void. This ruling was followed in Holyoke v. Haskins, 5 Pick., 20, and 9 id., 259, when the legislature intervened and declared that the jurisdiction assumed by a probate judge, so far as it depends upon the place of residence of any person, shall not be contested, except directly upon appeal, unless the want of jurisdiction appears upon the record. R. S., ch. 83, sec. 12.

To the same effect is the ruling in Becket v. Selover, 9 Cal., 233; and in Fletcher v. Wier, 7 Dana, 345, it was held that the decree of a probate court admitting a will to probate was prima facie evidence of its jurisdiction, which, it was said, might be overcome by showing that the testator was not domiciled in the state.

On the other hand it has been held that where a probate court grants letters of administration upon a petition which states the facts necessary to give the court jurisdiction, the decree of the court is not void and cannot be questioned collaterally, although the residence of the deceased at or last before his death was not, in fact, in the county where the letters were granted. Such has been the ruling in Virginia (Fisher v. Bassett, 9 Leigh, 119; Andrews v. Avory et al., 14 Gratt., 236); in Vermont (Abbott v. Coborn and Wife, 28 Vt., 667); in Texas (Burdette v. Silsbee, 15 Tex., 615); in Missouri (Johnson v. Beazley, 65 Mo., 264); in Alabama (Coltart v. Allen, 40 Ala., 155); in California (Irwin v. Scriber, 18 Cal., 503); and in New York (Bumstead v. Read, 31 Barb., 664; Bolton v. Brewster, 32 id., 393).

The reasons given for these rulings are not always the same or even harmonious. The subject is not a simple one, and affords a good opportunity for subtlety and refinement. All the cases, however, have gone, more or less, upon the argument of convenience, and the fact that any other rule is impracticable, and would leave all rights dependent upon or growing out of the grant of letters of administration in an unsettled and precarious condition.

§ 122. Jurisdiction of Oregon county courts in granting administration affirmed.

But in my judgment the conclusion reached in these cases is legally correct as well as practically just. The county courts of Oregon have the general and exclusive jurisdiction to grant letters of administration upon the estates of deceased persons, to be exercised, however, by each county court only in cases where the deceased was an inhabitant of that county at or immediately before his death.

The subject-matter, the granting of administration upon the estate of a deceased person without an administrator, is within the general jurisdiction of every county court in Oregon, but the exercise of it, in particular cases, depends upon the existence of particular facts, which must be ascertained by the court in the manner prescribed by law, and in the exercise of its admitted jurisdiction to grant letters of administration in the cases enumerated in the statute. But, if the person is not dead, or the administration of his estate has already been disposed of, then the subject-matter is not within the jurisdiction of the court; it does not exist, and a decree appointing an administrator in such case is simply void.

I am aware that the court of appeals of New York (Roderigas v. E. R. S. Institution, 63 N. Y., 460), by a bare majority, have held that a grant of administration by a surrogate was a judicial determination of the death of the person upon whose estate administration is granted, and conclusive evidence of the authority of the administrator to act until the letters were revoked or the order granting them set aside on appeal, "so far, at least, as to protect innocent persons acting upon the faith of them."

But this decision, notwithstanding the plausible arguments in support of it, is, as Judge Redfield remarked (5 Am. Law Reg., 213), "without a precedent in English or American jurisprudence;" and the responsibility for it is practically laid upon the statute of the state, which is said to require the surrogate in all cases to hear evidence and determine the question of death before granting the letters.

But in Jochumsen v. S. S. Bank, 3 Allen, 88, the supreme court of Massachusetts, under like circumstances, held that a grant of administration upon the estate of a person erroneously supposed to be dead was void, because the jurisdiction of the probate judge was limited to the appointment of administrators of deceased persons. And in Griffith v. Frazier, 8 Cranch, 9, the supreme court of the United States held that the appointment of an administrator by the ordinary of South Carolina upon the estate of a person where there was an executor entitled to act was void. Chief Justice Marshall delivered the opinion of the court, and in noticing the argument that the appointment was the judgment of an officer exercised upon a subject cognizable in his court and therefore not void, even if erroneous, admitted its force and the difficulty of distinguishing the cases in which a court of general probate jurisdiction may be said to have acted on a subject not within its cognizance, and said: "But the difficulty of marking the precise line of distinction does not prove that no such line exists. To give the ordinary jurisdiction, a case, in which by law letters of administration may issue, must be brought before him. But suppose administration to be granted on the estate of a person not really dead. The act, all will admit, is totally void. Yet the ordinary must always inquire and decide whether the person whose estate is to be committed to the care of others be dead or in life. It is a branch of every cause in which let

ters of administration issue. Yet the decision of the ordinary that the person on whose estate he acts is dead, if the fact be otherwise, does not invest the person he may appoint with the character or powers of an administrator. The case, in truth, was not one within his jurisdiction. It was not one in which he had a right to deliberate. It was not committed to him by law."

This ruling was followed in Kane v. Paul, 14 Pet., 33, where it was decided that the grant of administration of an estate where there was an executor entitled to act was void. So it has lately been held by the supreme court of Tennessee, that a grant of administration upon the estate of a living person is absolutely void. D'Arusmont v. Jones, 10 Rep., 539. But when there is a case for the cognizance of the court, that is, an estate of a deceased person without an administrator, the court, upon the proper application, has the jurisdiction to act and determine every question that may arise in the course of the proceeding, including that of the residence of the deceased.

In Fisher v. Bassett, supra, Judge Tucker makes the distinction between the jurisdiction of the subject-matter of granting administration of estates, and the authority to proceed in a particular case. After stating that he did not consider the county court of Virginia the same as the ordinary of England, because the former was a court of record, whose judgment could not be questioned if it had "jurisdiction of the cause," said: "And this is to be understood as having reference to jurisdiction over the subject-matter; for though it may be that the facts do not give jurisdiction over the particular case, yet if the jurisdiction extends over that class of cases, the judgment cannot be questioned; for then the question of jurisdiction enters into and becomes an essential part of the judgment of the court. Thus, if a county court were to give judgment of death against a white man, the sheriff would have no lawful authority to execute him; or, if a court of chancery were to grant probate of a will, it would be ipso facto void, since that court has no jurisdiction in any case of probates. It is held void ipso facto, because no inquiry is necessary to ascertain its invalidity. But where the court has jurisdiction of cases ejusdem generis, its judgment in any case is not merely void, because its invalidity cannot appear without an inquiry into the facts; an inquiry which the court itself must be presumed to have made, and which will not, therefore, be permitted to be revived collaterally."

And a parallel case it seems to me is this. The United States circuit court has jurisdiction of all civil cases in law and equity of a certain value arising between citizens of different states, and if in such a case it decides that the parties are citizens of different states, and therefore it is authorized to determine the controversy between them, its decision in this respect is conclusive except on appeal.

The object to be accomplished by means of giving exclusive jurisdiction to the county courts to grant administration of estates is to provide for the due and public succession to the estates of all deceased persons, and in the exercise of this jurisdiction the residence of the deceased is merely a matter incidental, and only of importance in providing for what may be supposed to be the orderly and convenient distribution of the power among the several county courts of the state.

The argument drawn from convenience and practicability in favor of holding the judgment of a court granting administration of an estate to be conclusive, as to the residence of the deceased, except upon appeal, is very suggestive and ought to have much weight. Cases are continually arising in which it is

difficult to say where the last residence or inhabitancy of the deceased was. The facts upon which the decision of the question turns are often so obscure, vague and ambiguous, or contradictory, that no two courts can hardly be expected to draw the same conclusion from them. And yet its decision is a mere matter of form-relates only to the procedure- and involves no substantial right. Apart from the local convenience of parties, it makes no difference what county court of the state grants the administration.

123. Decision of county court as to fact of inhabitancy held conclusive. The case under consideration is a striking illustration of the difficulty of deciding what was the last residence of a deceased person for the purpose of granting administration upon his estate; and what useless confusion, litigation and loss would follow if the judgment of the county judge upon such a question was open to attack collaterally, whenever and wherever any right of action or property arising out of or depending upon the correctness of such judgment was contested or called in question.

Within the seventy days immediately prior to his death Perkins was in four counties of the state. Already administration has been granted in two of them, upon applications made under advice of learned and careful counsel. And if I were called upon to decide of which county he was an inhabitant at or immediately before his death, I should probably say, not either of these, but Marion county.

So that if the rule contended for by the libelant were to prevail, and the grant of administration be held void in case it appears to this court that it was not made in the proper county, the conclusion might be that neither Davis nor Holmes is the legal administrator of the deceased.

But I do not think the residence of the deceased is an open question in this court. In the exercise of its general jurisdiction over the estates of deceased persons, the county court of Multnomah county, in the appointment of Davis, as administrator, decided that the deceased was an inhabitant of that county at the time of his death, and this decision, except upon appeal, is conclusive of the question.

The grant of administration to the libelant having been made upon an estate which was not vacant, but already vested in the administrator appointed by the court of Multnomah county, it follows that such grant is void, and the plea of ne unques administrator is sustained. This conclusion also derives support from the analogies of the following cases relating to the question of jurisdiction in probate courts and matters: Grignon v. Astor, 2 How., 335; Florentine v. Barton, 2 Wall., 210; Comstock v. Crawford, 3 id., 402; Canjolle v. Ferrie, 13 id., 469; Broderick's Will, 21 id., 509; Mohr v. Manierre, 11 Otto, 417; Dequindre v. Williams, 31 Ind., 453; Stroyer v. Richmond, 16 Ohio St., 465; Wanzer v. Howland, 10 Wis., 15; Gager v. Henry, 5 Saw., 237.

The decision upon this plea is sufficient to dispose of the case in this court; but the defendant having also contested it upon the merits, and the case being liable to an appeal and to be considered in the appellate court upon the merits, where the conclusions of the district judge upon the evidence are to be regarded as findings of fact drawn not merely from reading the notes of the witnesses' testimony, but a knowledge of the locus in quo and a careful observation of the manner and appearance of the witnesses while undergoing examination circumstances which so often qualify and sometimes contradict their verbal statements — I will proceed to dispose of the remaining two questions in the case: 1. Did the deceased come to his death by the wrongful act