Culver's Appeal from Probate

Loomis, J.

It appears from the record that an instrument purporting to be a copy of the last will of Clark Adye, of Woodbury, having been lodged with the court of probate for that district, the executor named in the will appeared in court and “moved that said copy be proved, approved and admitted to probate as and for the last will and testament of said deceased,” and that the present appellant also appeared and filed his written motion, being in substance a plea that the court had no jurisdiction of the matter, because the testator last resided in Seymour in the probate district of New Haven, and was not a resident of Woodbury. The court, after a full hearing, found that the testator last resided in Woodbury, and denied the motion. From this denial the appellant appealed to the Superior Court, where he moved *170 to erase the case from the docket, which the court refused, and after a full hearing the decree of the probate court was affirmed.

The first objection now made is, that the decree of the probate court was erroneous because the court received and acted upon a copy of the will, instead of the original. It is sufficient for the purposes of this case to say that no such objection was made in the probate court or in the Superior Court. The distinct and only issue presented by the appeal was that the court had no. jurisdiction because the last residence of the testator was not in "Woodbury, but was in Seymour.

Moreover, the motion in error contains no assignment of this point. True, it is assigned for error that the cause ought to have been erased from the docket because the court of probate had no jurisdiction, and the counsel for the appellant argues the question as belonging to this head. But if the jurisdictional question had not been restricted by the proceedings in the probate court and the terms of the appeal, the point now made could not, in any sense, be appropriately made as an objection to the jurisdiction. If the probate court had jurisdiction of the original will, it had as ample jurisdiction to allow a copy to be substituted if the original was lost. The real objection is, that the form of the decree is defective in not stating the reason for substituting a copy. It will be noticed, however, that in the record of the appellant’s appeal, which recites the order and denial of the court appealed from, the reason for substituting a copy is in effect given, namely, that the supposed will was claimed to have been lost.

The other questions presented for review all relate either to the admissibility or to the effect of certain evidence offered during the trial.

The finding states the questions as follows: “ The appellant claimed that the deceased could not and did not have a domicil in Woodbury, and did not last dwell there within the meaning of the statute, because Samuel L. Bronson, Esq., of New Haven, was appointed his conservator, May *171 8th, 1876, by the probate court for the district of New Haven, and acted as such down to the time of the decease of said Adye; that, although the deceased did not consult said Bronson at the time he went to said Atwood’s, which was in September, 1876, he did soon afterwards, and Bronson told him he could remain there for the present, and he would try to get a place for him at Seymour, and did try but without succeeding; that said Bronson paid said Atwood for clothes and for support in part, down to the time of the death of the deceased; that said deceased called on said Bronson, as conservator,, several times at New Haven while he was staying at Atwood’s; and in proof of Bronson’s having been appointed conservator the appellant offered in evidence, subject to the appellee’s objection, the record of such appointment and the application therefor.” The evidence was all objected to by the appellees and ruled out by the court. We will assume for the purposes of this case that the testi•mony was admissible, but as all the facts desired to be proved are fully stated in the offer, if the evidence had been received and the facts found as stated the result would have been the same, and we can see that no injustice was done, and therefore no new trial should be advised.

It may be suggested that the appellant relies on his motion in error to reach this point as matter stricti juris. But he has joined a motion for new trial, and the court will refer the question to the appropriate motion. If, however, there had been no motion for new trial, the suggestion in Selleck v. Rusco, 46 Conn., 375 , would be followed, and the rules applicable to the latter would be applied.

Our conclusion that no injustice was done by excluding the evidence referred to involves the assumption that Adye, under all the circumstances mentioned, could and did dwell in Woodbury at the time of his decease, notwithstanding he was under a conservator. The court finds that, on the 2d day o September, 1876, he went, of his own free and accord, to the house of Atwood, in Woodbury, with the intention of making that his home until his death, having a room and bed assigned him there, sometimes working for *172 Mr. Atwood, and occasionally for other persons in that town, for short periods of time, but always considering Atwood’s his home; that from boyhood he was addicted to habits of intoxication which affected his mind somewhat, and that his mind was naturally weak and below the average of mankind, but not to that degree which prevented him from distinguishing between right and wrong, or from choosing and determining where he preferred to reside and have his home; that ho was made an elector in Woodbury in the fall of 1876, and voted at the presidential election; and the court distinctly finds that he last dwelt at Woodbury. He died there in March, 1878. Now/ although a person lawfully under a conservator must be presumed incapable of managing his affairs so that he can make no binding contract with another, yet it seems to us it does not necessarily imply tl^at the person is incapable of exercising such intent and of performing such acts as may, with the simple assent of his conservator, result in establishing a domicil sufficient to enable the court after his decease to probate his will. The law, in its beneficent care and protection of incapable persons, has no need to go to the extent claimed in this case, and the rights of other persons do not require it.

It will, therefore, suffice to dispose of the particular question before us, if we say that the excluded testimony, if received, could .not have impaired the case for the appellees at .all, because, under the circumstances mentioned, the assent on the part of the conservator to the residence of Adye in Woodbury was clearly sufficient to enable the latter to “ dwell ” in that town, within the meaning of the statute.

The only remaining question is, whether the court gave proper effect to the record evidence offered and received, showing that, on the 18th day of April, 1878, the probate court for the district of New Haven appointed S. Culver, the appellant, administrator of the goods and estate of Adye, and that he accepted the trust and gave bonds as required by law. The finding states that “ the appellant claimed and asked the court to decide that this action of the court of probate, not having been appealed from nor set aside, was *173 conclusive, or at least primd facie evidence, as to the place where the deceased last dwelt, and that parol evidence could not be received to prove that the deceased last dwelt at Woodbury.”

The proposition as made is complex, if not inconsistent; but as the last clause relative to parol evidence is connected with the preceding by the conjunction “ and,” we construe the request as meaning that, whether the court should hold the action of the New Haven court conclusive, or only primd facie, parol evidence could not be received to prove a residence in Woodbury.

It is not claimed in the assignment of errors nor in the argument that the court erred in not holding the record of the New Haven court primd facie evidence, or that the court so decided. The court received the record as evidence, and if uncontradicted it would doubtless have had the effect, as it should, of primd facie evidence. The real complaint is that the court did not give a controlling effect to the action, of the New Haven probate court.

The argument for the appellant on this question, as stated in the brief, was 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.”

This argument entirely ignores a well-settled distinction between judgments of courts of general jurisdiction, which cannot be collaterally attacked (unless the want of jurisdiction is apparent on the record), and judgments of courts of limited and inferior jurisdiction, which can be collaterally attacked, and if the want of jurisdiction in fact exists the judgment is an absolute nullity. There is no disagreement in the cases at home or abroad on this subject. But our *174 own decisions are sufficiently explicit. Sears v. Terry, 26 Conn., 273 ; First National Bank v. Balcom, 35 Conn., 351 .

There is no error in the judgment complained of, and a new trial is not advised.

In this opinion the other judges concurred.