Varner v. Bevil , 17 Ala. 286 ( 1850 )

CHILTON, J,

The question presented for our-consideration is, whether the will of Samuel Varner, which was made and published in the county of Octibbeha, in the State of Mississippi, and in which county the said deceased was domiciled at the time of his death, can be admitted to probate in the Orphans’ Court of Marengo county, in which his real estate and a small portion of his personal estate are situated, before any action is taken in respect of the -will in the State of Mississippi ? The court below determined that' it had no jurisdiction to admit the will to probate in this State, and dismissed the application of the plaintiff in err&r propounding it.

The statutes of this State make no express provision for cases of this kind. They authorise, authenticated copies of wills, proved according to the laws of any of the United States, and which embrace or concern- property within this State, to be proved and recorded subject to be contested and controverted, as the original will might be if offered. — Clay’s Dig. 598, § 12: And provision is also made for suits by foreign executors or administrators, but nothing is said as to the Orphans’ Court admitting a will to probate which embraces both personal and real estate made by a citizen of1 another State, before it has beén proved in the country of the testator’s domicil. We must then recur to the general law as recognised by the code of international comity, for the rules which must guide us in arriving at a correct conclusion. Mr. Lovelass states it as a well settled principle -of the law, that the descent of real property is governed by the law of the place where the land is situated, but that personal property follows the person, and with respect to its transmission either by succession or the act of the party, becomes subject to the law of the place where the owner is at the time being domiciled; that the owner in any country may dispose of ‘his personal property, wherever it may be, in a manner authorised by the law of that country, and when he dies it is not the law of the country in which the property is, but the law of the country in which he was domiciled that will regulate the succession. Whatever contrariety of opinion may formerly have existed upon the point, it is now the established doctrine both in this country and in England, that,the disposition by will of personal property, to be valid anywhere, must be valid by the law of the testator’s domicil. — Graham v. Johnson, 3 Ves. 198; Story’s Confl. of Laws, % 481, and the numerous authorities there cited; Holmes v. Remsen, 4 Johns. Ch. R. 460; S. C. 20 Johns. R. 229; Shultz v. Pulver, 3 Paige, 182; Story’s Confl. Laws, § 46-5; Stanley v. Bernes, 3 Hagg. Eccles. Rep. 373; S. C. 5 Eng. Eccles. Rep. 140. In this last mentioned case, it was held by the High Court of Delegates, reversing a decision of Sir John Nickoll, that a natural born British subject may acquire a foreign domicil, and that the animus reveriendi and claim to be considered and treated as a British subject did not preserve his original domicil — that if domiciled abroad, he must conform in his testamentary acts to the formalities required by the lex domicilii. Judge Story says there is no difference between cases of succession by testament and intestacy, which principle was first asserted by the Supreme Court of Pennsylvania, in Dezezbats v. Berquiers, 1 Binny Rep. 336, and which he holds may be considered as of universal authority here, § 468; see, also, Barnes, adm., v. Brashear, 2 B. Monroe, 380. On the other hand,' the doctrine is equally as well established that in respect of immovable property, the testamentary disposition of it must conform to the law of the place where the property is situated, both as respects the power and capacity of the testator and the forms and solemnities required to give the will effect.— Story’s Confl. L. § 474, and authorities there cited. In Barnes, adm., v. Brashear et al. supra,, it was held by the Supreme Court of Kentucky that a certified copy of a nuncupative will, purporting to pass property in Kentucky, but which was proved and recorded in the state of Mississippi, was not sufficient to show that such will had been executed and proved as the laws of Kentucky required. The court say, “When the use of such a will as cannot be effectual here, unless made according to our local law, becomes necessary as evidence here of a testamentary right, a probate in a foreign forum may authorise a copy to be proved and admitted to record in this State, but such copy, however certified, is not per se any evidence of the valid execution of the will.” See, also, Carmichael against Elmindorf, 4 Bibb’s Rep. 484. If this be the correct rule of law, and a devise of land will not be effectual unless the same be executed according to the law of the place where the land is situated, it could subserve no real purpose first to require the will to be proved according to the law of the domicil before it can be admitted to probate here.

Our statute, which provides for the probate in our courts of authenticated copies of foreign wills which have been proved according to the laws of any of the U. States, or of any country out of the limits of the United States, was not designed to deny to our courts jurisdiction over the probate of the original will made in a foreign country, but disposing of property situated here. It but enlarges the jurisdiction of the court, enabling the parties to make the contest upon an authenticated copy of a foreign will, proved according to the law of the domicil, in the same manner they might have done upon the original. It could not have been intended by the legislature in authorising copies to be proved, to affirm that the originals, which furnished the better evidence, should not be allowed to be proved or contested. This would be to reverse the rule of law which gives the preference to the primary over secondary evidence. '

It appears in this case that the negroes belonging to the estate were in Mississippi at the time the testator died, and have been removed here by the executor since his death. Now’ in regard to such property, we are clear that the Orphans’ Court of this State has no jurisdiction. The executor cannot change the forum in which he will litigate questions respecting the succession by his wrongful act in removing the property. But in respect of the land situated in this State, as also the personal property which was in Marengo county at the time of the testator’s death, the court has jurisdiction to prove the will. It results from what we have already said, that as to the land in this State, the will must conform to our law both as to the capacity of the testator and the formalities required to render it valid, but as to the personal property situate here at the time of the death of the testator, its validity must be tested by the lex domicilii.

The Orphans’ Court having rejected the application for probate in limine, its sentence is reversed and the cause remanded, that proceedings may be had conformably herewith.