Wood v. Mathews , 53 Ala. 1 ( 1875 )

BRICKELL, C. J.

The appellees William M. Mathews, and Ms wife Mary A., and Mary B. Smoot, were the complainants in the bills original and amended filed in the court of chancery. The object and prayer of the bills, is a settlement of the administration and distribution of the estate of Richard Morton, who died intestate. The complainants do not bear the relation of heirs or distributees to Richard Morton. Title to the relief sought is deduced, from the fact that the complainant, Mary A. Mathews, is a legatee under the will of her grandmother, Mary B. Smoot, who was an heir and distributee of said Morton, and that she, said Mary A., is the sole heir and distributee of a deceased brother, who was also a legatee under the will of said Mary B. The complainant Mary B., Jr., deduced her title under the will of her son, who was a legatee under the will of his grandmother, said Mary B., the heir of said Richard. It is not averred or shown that either of the wills, on which the right of the complainants to relief depends, has been admitted to probate in this State.

The cause has been argued here, on several questions, into an examination of which we do not enter, because the judgment we feel compelled to pronounce, proceeds upon a single point, and in no event can affect these questions, or prejudice the just claims of the complainants.

The common law committed exclusive jurisdiction over wills of personal estate, to the ecclesiastical courts; and before any testamentary paper of personalty could ho admitted in evidence, probate of it in those courts was indispensable. The law of this State confers on the courts of probate original and exclusive jurisdiction, not only of the probate of wills of personalty, but of realty, and the only evidence of the existence of such will, which can be received in any other forum, is the sentence of that court, declaring its authenticity and validity. In Shepherd v. Nabors, 6 Ala. 637, an instrument was executed in Tennessee, which was declared a will, and not a deed. Probate of it had not been taken, and as was stated by the court, the question presented was, whether the legatee of personal property could recover it at law, until the will had been admitted to probate in the proper forum. Quoting approvingly the declaration of Lord Kenyon, in Rex v. Inhabitants of Nethersal, 4 T. R. 258, “we cannot receive any other evidence of their being a will in this case, than such as would be sufficient in all other cases, where titles are derived under a will; and nothing but the probate or letters of administration with the will annexed, are legal evidence of the will in all cases of personalty,” held, that nothing could be taken under the instrument until it had been admitted to probate. In Moore v. Lewis, 21 Ala. 580, a bill was filed to recover a legacy under a will, averred to have been made in Cuba. Probate of it in this State, or within the United States, was not averred. A demurrer to the bill was sustained, and this court declared properly. Goluthwmte J, said: “The rule is, that a suit cannot be maintained for a legacy until the will has been admitted to probate; and as sentences of foreign courts do not operate, except as evidence, beyond the limits of their jurisdiction, the proof or probate of the will in Cuba conferred no authority to proceed upon it as a will in this State, although it might be evidence on which to have it admitted to probate here. The title of the plaintiff in error to the legacy depended upon the will, and until he had established it as such, according to the laws of this State, he could assert no rights under it in this State.”

The complainants in the court below were in effect suing to recover legacies. Then as legatees, directly, or derivatively, under the will of an heir and distributee of Richard Morton, deceased, they had no claim, or right to, or interest in his estate. The share of his deceased heir, is transmissable to them, only under testamentary papers. When it reached them it satisfies and extinguishes only their claims as legatees. In the absence of the wills, there would not be the slightest foundation for their suit. The wills are indispensable muniments of their title. Of these wills probate must be had before any court can receive them in evidence. If they were received without probate, other tribunals would be compelled to invade the province of the courts of probate — to exercise the exclusive jurisdiction conferred on them — and inquire into the character of the instrument, the capacity of the testator, the mode and sufficiency-of its execution, and all the questions a probate settles and concludes. To avoid this, the temporal courts in England, and the courts of law and equity in this country, do not take cognizance of testamentary papers, or of rights dependent on them, until after probate. Armstrong v. Lear, 12 Wheat. 169; Bond v. Graham, 1 Hare (23 Eng. Ch.) 484; Price v. Dewhurst, 4 Myl. & Cr. (18 Eng. Ch.) 75; Campbell v. Sheldon, 13 Pick. 8; Kerr v Moon, 9 Wheat. 565.

It may be, and probably is true, that the wills under which the complainants claim have been duly admitted to probate, in the proper forum, of the domicil of the several testators. It may also be true, that under the statute, (R. C. § 1949) probate of them could be taken here, as a matter of coui’se, on the production of authenticated copies of the wills and probates had in the domicil. This shows only that the complainants have the evidence on which to place themselves in a condition to maintain suit. But as is said, in Armstrong v. Lear, supra, “It is one thing to possess proof which may be sufficient to establish that a testamentary instrument had been executed in a foreign country, under circumstances which ought to give it legal effect here; and quite a different thing to ascertain what is the proper tribunal here, by which those proofs may be examined, for the purpose of pronouncing a judicial sentence thereon.”

We are constrained to declare that the complainants, as the case is presented by the record, had not any right to maintain suit for the recovery of the share of Mary B. Smoot, deceased, in the estate of Richard Morton, deceased. The decree of the Chancellor is reversed, and a decree here rendered disznissing the bills, but without prejudice to any suit the complainants may izistitute after probate of the wills under which they claim.