Heard v. Drennen , 93 Miss. 236 ( 1908 )

Mayes, J.,

delivered the opinion of the court.

W. L. Tillman was a resident of Muscogee county, Ga., at which place he resided and was domiciled at the time of his-death. Tillman made a last will and testament naming R. E. Clements, Erank A. Heard, and Travis C. Drennen as his executors. This-will was duly probated in the proper court of Muscogee county, Georgia, agreeable to all the requirements of the-law in that state, and two of the executors, R. E. Clements and Frank A. Heard, duly qualified as executors of this last will and testament; but the record shows that Travis C. Drennen, the third executor, failed to qualify as executor in Georgia, and has not yet qualified. Tillman left property in Georgia, Alabama and Mississippi; his property in this state consisting of real estate. After the will was probated in Georgia, two of the executors, Clements and Heard, • proceeded to execute the will in Georgia. Some time in 1907, Travis O. Drennen having procured a certified copy of the will, together with the probate of same in Muscogee county, Georgia, filed it in the chancery court of Washington county, Mississippi, asking that it be admitted to probate there, and that letters testamentary be issued to him* The will was duly admitted to probate by the chancery court of Washington county, and Travis O. Drennen, R. E. Clements, and Frank A. Heard made executors thereof.

Clements and Heard filed a protest in the chancery court of Washington county against the action of the clerk, allowing Drennen to be appointed as one of the executors. The protest filed in effect charges that Drennen is not a fit and proper person to qualify as an executor, but this contention may be disposed of 1 y the simple statement that no proof is made of any such facts in the record as would sustain it. It is further contended that Drennen ought not to be allowed to qualify as an executor in this state because he is disqualified to act in the state of Georgia, the place where the will was made and probated; and it is further alleged that he should not be allowed to act here because he has renounced his right to act as executor under the will in Muscogee county, Ga. We may say as to this last contention, also, there is no proof in the record, even if it would be conclusive in this state, that Drennen had renounced his right to act as an executor under the will.

The main contention in this case is that, because Drennen was not qualified to act in the state of Georgia as one of the ex-editors under this will, he is therefore disqualified by reason of that fact to act as one of the executors of the will in this state.

By Code 1906, § 2004, it is provided that: “Authenticated copies of wills, proved' according to the laws of any of the states of the Union, or of the territories, or of any foreign country, and affecting or disposing of property within this state, may be admitted to probate in the proper court; but such will may be contested as the original might have been if it had been' executed in this state, or the original will may be proved and admitted to record here.”

The only effect of this section is to dispense with the necessity of original proof of foreign wills when presented for probate in this state, where the will has been duly proved according to any of the laws of any of the states or territories of the Union, or of the foreign country, where admitted to probate but, while this is true, the statute does not give any conclusive effect to the foreign probate of a will, and is very careful to protect the right to contest it when presented here, as the original might have been if it had been executed in this state. In other words, the only effect of Code 1906, § 2004, is to dispense with formal proof of the due execution of the will where it has been proved according to the laws of any other state, etc., where an authenticated copy is produced showing that it has been proved in the state where it was made according to the laws of that state, etc. In so far as the will itself is concerned, it is treated in all respects as an original will, and all the lights to be derived through the will must be derived from its terms administered according to the law of this state, so far as it affects property situated here.

Code 1906, § 2006, provides that: “The executor named in any last will and testament, whether made in this state or out of it, and admitted to probate here on an authenticated copy or on the original, shall be entitled to letters testamentary thereon if not legally disqualified; but a person shall not be capable of being executor who, at the time when letters testamentary ought to be granted, is under the age of eighteen years, of unsound mind, or convicted of a felony.”

By this section it is provided that the executor named in a last will and testament, whether made in this state or out of it, when the will is admitted to probate here on an authenticated copy, etc., shall be entitled to letters testamentary thereon if not legally disqualified. In other words, the certified copy of the will being treated in this state after its probate in all respects as an original will, and being given the same effect as if made in this state, and no other, it is the duty of the court, under this section, to appoint the executor named in the will, if not legally disqualified under the laws of this state, without refeence to whether he may or may not be qualified to act in the state or county where the will was made. A person qualified to act as an executor in this state, under the laws of which alone this is to be determined, is qualified to act as an executor under a will probated here, even though he may not have been qualified to act in another state. The legal disqualification meant in the code is a legal disqualification under the laws of'this state, and has no relation to what may be the essentials of qualification under the laws of another state. Should we hold contrary to this, it might result in the courts of this state being compelled to qualify an executor appointed by another state under the age of eighteen years, or an executor of unsound mind, or an executor who had been convicted of a felony — all of which is positively forbidden by our statute. As to the property within its borders, the jurisdiction of a state is absolute. A will disposing of property within the borders of this state owned by a testator living in another state or foreign country will be recognized and enforced, but the machinery by which this is done must be of the creation of the state wherein is situated the property, and cannot be prescribed or limited by any other than its own authority. By comity our state provides the manner in which foreign wills may be proved here; by comity it allows the executor named in the will to act here. By -virtue of this statute the right of a person to act as executor is determined by two things: First, is he qualified under the law of this state to act as executor in any event; and, second, is he named as such in the will? .If these two qualifications are established, he can act as executor here, no matter what action the courts of another state have taken with reference to his right to- qualify as executor in their jurisdictions. Of course, there may be reasons why a court might refuse to qualify a person as executor, which do not appear in the statute, but we speak of the qualification fixed by the statute as applied to this case.

The case of Bloor v. Myerscaugh, 45 Minn. 29, 47 N. W. 311, is directly in point. It was held in that case that: “The action of a foreign court in granting or refusing letters to executors appointed by the testator in a will, who may or may not be able to-qualify in that jurisdiction, in no way affects the power of the-court to appoint the executor who could not qualify in the foreign jurisdiction when the will is sought to be probated in another state where the testator owned real property at the date of his death.”

Affirmed.