Dickey v. Vann , 81 Ala. 425 ( 1886 )

SOMERVILLE, J.

— 1. The probate of a will has often been held by this court to be in the nature of a proceeding in rem — operating upon the thing itself and determining its status. Being an adjudication upon the status of the partic-' ular subject matter, like other judgmnets in rem, when pronounced by a tribunal of competent jurisdiction, it is binding upon all other courts, and as commonly said, concludes the world. It is only when there is an intervention of parties litigant, and an actual contest ensues, that it assumes the nature of a proceeding inter partes. — Deslonde v. Darrington, 29 Ala. 92 ; Kempe v. Coons, 63 Ala. 448; Martin v. King, 72 Ala. 354; Blakey v. Blakey, 33 Ala. 611; Freeman on Judg. § 608; 1 Greenl. on Ev. § 550; Estoppel and Bes Adjudícala (Herman), Yol. 1, § 293.

2. It nece sarily follows from the foregoing principle that if a will be proved in a court of probate, which in this State has original, general, and unlimited jurisdiction of the probate of wills, and such court has jurisdiction of the particular case, a‘failure to give the requisite statutory notice to the widow and next of kin, of the application for such probate, does not render void the judgment of the court establishing the probate. In such case the judgment being designed to establish the status of a thing, binds the res even in the absence of any personal notice to interested parties. — Ereemau on Judgments, §§ 60':, 608. The defect is a mere irregularity rendering the judgment voidable at the instance of any person entitled to, and failing to receive such notice, his remedy being to move the Probate Court to set aside its improvident judgment of probate, or to procure himself to be made a party to the proceeding by petition, and sue out an appeal, or to file a bill in chancery to contest the validity of the will within the time prescribed bv section 2336 of the present Code (1876) of Alabama. Hall v. Hall, 47 Ala. 290 ; Goodman v. Winter, 64 Ala. 410 ; Lovett v. Chisholm, 30 Ala. 88 ; Le s v. Browning, 15 Ala. 495; Roy v. Segrist, 19 Ala. 810; Stapleton v. Stapleton, 21 Ala. 587; Brock v. Frank, 51 Ala. 85; Code, 1876, §§ 2336, 2376; Satcher v. Satcher, 41 Ala. 26.

• 3. Nor has it ever been supposed, as suggested by counsel, that there was wanting in these established modes of judicial proceeding that “due process of law” guaranteed by our constitution to every person, and without which he can not be deprived of his property. These are the settled rules and modes applicable to that particular class of proceedings in rem to which this case belongs, and are deemed amply sufficient for the protection of the rights of all whose interests may be threatened with prejudice for want of notice before the rendition of the original judgment declaring the status of the will. With these modes of redress open before him it can not be said that any person is without his day in court. —Ex parte McDonald, 76 Ala. 603 ; 1 Greenl. Ev. § 518 ; Freeman on Judg. §§ 606-8, 611-12; 1 Herman’s Estoppel, § 293.

4. We can not see that this rule is varied where a foreign will, or one admitted to probate in another State, is admitted to probate in a court of competent jurisdiction in this State, on a properly certified copy of the record, verified in accordance with section 2313 of the Code of 1876, even where the devise made by it is of real property. The probate of the will of William Cloud in this case, which is sought to be collaterally attacked, was made under this statute, and purports to affect realty, situated in Madison county in this State. It is true that a will, in order to convey real property, must be executed and attested in accordance with the law of the State .where the property is situated. So, likewise, as to the testamentary disposition of this particular kind of property, the lex loci rei sitce also governs as to the power and capacity of the testator, while, as to personal property, the lex domicilii, or law of the testator’s domicil, prevails. — Varner v. Bent, 17 Ala. 286; Brock v. Frank, 51 Ala. 85. Nor can it be denied that the statute which was in force in this State, ct the time of the testator’s death in 1846, is to govern in this case, requiring, as it did, that the testator should have been twenty-one years of age, and that his will should have been signed by him, and attested by three, instead of two witnesses as under our existing statute, who must have signed their names in his presence. — Clay’s Dig. § 1, p. 596.

5. The probate of Cloud’s will relied on by the appellee’s counsel is the one made by the Probate Court of Madison county, in this State, on December 5th, 1884. This was allowed on a certified transcript of the Coucty Court of Davidson county, Tennessee, a tribunal which is shown to have had original and exclusive jurisdiction of the probate of the wills of deceased resident testators. No reliance is placed upon the fact that a transcript of the foreign probate of the will was filed and recorded in the Probate Court of Madison county in the year 1852. This alone is admitted to be immaterial and without any legal efficacy in its bearing on the questions arising for decision in this case. — Pope v. Pickett, 51 Ala. 584. The will on its face appears to have been attested by three witnesses, as required by the laws of this State at the time of the testator’s death. The certificate of proof, as made by the Tennessee court, is admitted to be defective, as it appears in the transcript, in failing to show that each of the three witnesses attested the instrument in the presence of the testator. It is now contended that the decree of the 'Madison county Probate Court, of December 5th, 1884, which was made without notice to the next of kin, was absolutely void, for want of jurisdiction, and can be collaterally assailed. The statute, it is said, permits an ancillary probate of a foreign will on a certified transcript, where the testator was a non-resident, only where it appears that such will was “duly proved” in the court of the State where the probate was made. — Code of 1876, § 2313. The proof of the execution here is defective, in failing to show that all of the attesting witnesses signed in the presence of the testator. It has been more than once held in this State, that an ancillary probate of a will under this statute could be made without giving any notice of the proceeding to the widow or next of kin, the statute being construed not to require it. — Brock v. Frank, 51 Ala. 85 ; Ward v. Oates, 43 Ala. 515. This principle, however, we do not deem of essential importance in this case. The proceeding, as we have said, being one in rem, the failure to give notice, however erroneous, does not render the probate void, so as to subject the judgment of the court to collateral attack. One of the very questions submitted to the Probate Court of Madison county was, whether the will of Cloud was shown to have been duly proved by the attesting witnesses at the time of the probate in the Tennessee court. In other words, it was called on to pronounce upon the sufficiency of the transcript as evidence to prove the validity and due authentication of the original probate.— Goodman v. Winter, 64 Ala. 410; Brock v. Frank, 51 Ala. 85. As observed in Brock v. Frank, supra : “ When this ancillary probate is sought, no question arises except as to the validity and authentication of the original probate. If that was granted by a tribunal of competent jurisdiction, and it is properly authenticated, the ancillary probate must be allowed.” The evidence may not have been sufficient to justify the finding of the Probate Court. Its judgment, based on such evidence, may have been erroneous. But it cannot be reviewed in the manner here attempted. It is not void, and-cannot be collaterally attacked. It is conclusive upon all concerned, even upon those having no notice of the proceeding, until set aside in some legitimate mode.

6. We might go further if necessary, and decide, that, in view of the testator’s will appearing regular on its face — seeming to have been attested by the requisite number of witnesses — the defective probate will be deemed to have been cured by great lapse of time, having stood unquestioned for over forty years. No reason is perceived why the presumption, omnia rite acta, will not apply in a case of this kind. — Jemison v. Smith, 37 Ala. 185,196; 2 Redfield on Wills, 37-38; Giddings v. Smith, 15 Vt. 344; Jordan v. Cameron, 12 Ga. 267 ; 1 Greenl. Ev. § 21; Matthews v. McDade, 72 Ala. 377 ; Gosson v. Ladd, 77 Ala. 223.

The probate of the will in controversy, which was made on December 5th, 1884, not being void, to say the least, no second probate of the same instrument in the same tribunal could properly be effected. The petition of the appellants, filed for this purpose, was therefore rightly disallowed and dismissed.

Judgment affirmed.