Ward v. Oates , 43 Ala. 515 ( 1869 )

PETEES, J.,

(after stating facts as above). — Notwithstanding said William J. Ward died out of this State, it was competent to have his will admitted to probate and-record in this State, upon proper proof that it had been duly proved in the State of the residence and domicil of the testator. All the proof necessary in such a case, when the will had been admitted to probate and record out of this State, but within the United States, is the production, in the court here, of said will, or a copy of the same, and the probate thereof, certified by the clerk of the court in which said will had been proved, with the certificate of the judge, or one of the judges, of such court, that the attestation is genuine, and by the proper officer. All this may be shown by a transcript of the probate and record of such will, in the court of the State where the same was done and properly authenticated, as required by law. The same force and effect is to be given to such a transcript here, as would be given to the original proceeding in the State of Texas. This appears to have been done in this instance. Nothing more was required.—Revised Code, § 1949, cl. 1; Const. U. S., Art IV, § 1, Rev. Code, p. 18.

After such will is so admitted to probate and record in the proper court of this State, it needs no other proof of its validity. The same faith and credit are then to be given to it here, as would be given to the same proceeding in the State and courts of Texas. This gives it the full force of a will proven and admitted to probate in the State of Texas. And the judge of probate of the county in which such will is so probated in this State, if there are assets of the testator in such county to be administered, has authority to issue letters testamentary thereon, according to the provisions of the Code on this subject. And, in case no person is named in said will as executor, or if the persons entitled to administer on such estate, fail, for forty days, to apply for letters testamentary, then letters may be issued as letters of administration granted in cases of intestacy.— Revised Code, §§ 1975, 1976,1982, 1983.

Letters of administration are to be granted in the following order: 1. To the husband or widow, if citizens of this State. 2. To the next of kin entitled to share in the distribution of the estate. 3. To the largest creditor of the intestate residing within this State. 4. To such other person as the judge of probate may appoint. But if any of the preferred persons fail to apply for letters within forty days after the death of the intestate is known, they must be held to have relinquished their right to the administration. — Rev. Code, §§ 1986, 1987.

The facts show that William J. Ward died in 1861, and that Oates was appointed administrator, cum testamento annexo, of his estate, in this State, in Henry county, on the 6th day of December, 1866, near four years after the death Of the testator. This brought his appointment fully within the provisions of the Revised Code above cited, which is but a copy of the old Code. The appointment was, therefore, proper, and ought not to have been revoked.

The will of William J. Ward, deceased, seems to have been properly propounded, proved and admitted to record in the State of Texas, and a properly authenticated transcript, or copy of the record of said will, so proved and admitted to probate in Texas, is entitled to be admitted to probate and record in this State; and the validity and authentication of the will thus proved and recorded in Texas, cannot. be impeached in the manner here proposed.—Bradley v. Broughton, 34 Ala. 694; Coltart v. Allen, 40 Ala. 155. The probate court of Henry county, therefore, properly overruled the motion of the appellant in the court below.—Sims v. Boynton, 32 Ala. 353.

Let the judgment of the probate court be affirmed, at the appellant’s costs.