Crusoe v. Butler , 36 Miss. 150 ( 1858 )

HaNDY, J.,

delivered the opinion of the court.

This was an action of ejectment, brought by the defendants in error, to recover a tract of land in Lowndes county, in the possession of the plaintiff in error, who held under one Abijah Mann, Jr.

The claim of the plaintiffs below'was founded upon the title of Mrs. Butler, as the sole heir at law of Joshua B. Leavens, deceased.

By agreement of the parties, it was admitted on the trial, that Joshua B. Leavens was a resident citizen of the State of Alabama, and that he died there, having, at the time of his death, a perfect 'title tb the land in controversy; that a copy of a deed of conveyance for the land, executed by Benjamin Leavens, executor of Joshua B. Leavens, to Abijah Mann, Jr., dated 17th April, 1841, should be admitted in evidence, to have the same effect as the original would have, if produced and proved; that at that date, Helen N. Butler, one of the plaintiffs, was under the age of twenty-one years, but was married to Thomas J. Butler, and was the only child and heir at law of Joshua B. Leavens, and that her mother was dead; and accompanying this agreement, was the deed referred to in it. Upon this evidence, and upon the admission that the defendant was in possession of the premises, the evidence in behalf of the plaintiffs was closed.

The defendant then read in evidence, the deed above mentioned from Benjamin Leavens, executor of Joshua B. Leavens, to Abijah Mann, Jr., for a large quantity of lands, embracing that in controversy, reciting the consideration of it to be a full settlement of all causes of difference between the surviving partners of the firm of St. John & Leavens, and Benjamin Leavens, executor, he acting in the matter under the powers conferred upon him by the will of Joshua B. Leavens, and representing the interests of his estate.

The defendant then offered in evidence, a copy of the bond executed by Benjamin Leavens, as executor of Joshua B. Leavens, dated 8th July, 1835, from the Probate Court of Mobile county, in the State of Alabama, duly authenticated; and a copy of a petition filed in that court by Butler and wife, in February, 1838, setting forth the grant of letters testamentary upon the estate to Benjamin Leavens, on the 8th July, 1835 — the probate of the will in that court — and praying distribution of the estate to them.

He next offered in evidence, an exemplification from the Probate Court of Lowndes county, in this State, of the record of an authenticated copy of the last will and testament and codicil of Joshua B. Leavens, deceased, as admitted to probate by the Probate Court of Mobile county, in the State of Alabama. This exemplification, and the authenticated copy from the Probate Court in Alabama incorporated into it, contains the will of Joshua B. Leavens and codicil to it, each appearing on the face to have been attested and subscribed by three witnesses — showing that on the 8th July, 1835, the will and codicil were produced by Benjamin Leavens, in the Orphans’ Court of Mobile county, and that he proved “ the due execution of said will by the oath of John Elliott, one of the subscribing witnesses thereto, and of said codicil by the oath of Newton St. John, one of the subscribing witnesses to the same;” and that it was thereupon ordered that the will and codicil should be admitted to probate, and that letters testamentary be granted to Benjamin Leavens. And the exemplification shows that this authenticated copy was, at August term, 1854, of the Probate Court of Lowndes county, “ ordered to be admitted to probate, and recorded in that court, as an authenticated copy of the last will and testament of Joshua B. Leavens, deceased.”

He next offered in evidence, an authenticated transcript of the same will and probate, from the Probate Court of Mobile county.

He then offered in evidence, a transcript of the record from the Circuit Court of the United States in Alabama, showing a bill in chancery filed by the surviving partners of St. John & Leavens, against Benjamin Leavens, executor, and Butler and wife as heir and distributee of the estate of Joshua B. Leavens, seeking to charge the estate of Joshua B. Leavens, in a very large amount, for moneys of the firm applied by Joshua B. Leavens to his individual benefit in speculations and otherwise, and in purchasing large quantities of lands in this State and elsewhere, and seeking to charge those lands with the debt due to the surviving partners, or to have an interest in their behalf declared upon those lands. The record shows the answer of the executor, and of Butler and wife, to the bill; and after the cause was at issue upon the pleadings, and in progress of litigation, that the bill ivas dismissed on the motion of the complainants.

The defendant then offered in evidence, the deposition of George E. Sheffield, who testified that, though one of the executors appointed by the will of Joshua B. Leavens, he did not qualify, and therefore, did not join in the conveyance of the lands made by Benjamin Leavens to Abijah Mann, Jr.; that this conveyance was made by way of compromise and settlement of a large indebtedness from Joshua B. Leavens, to the surviving partners; that he considered the settlement advantageous to the estate, and so advised the executor.

Also the deposition of William Dunn, who testified that he was solicitor for the complainants in the suit in chancery, that the suit ■was settled by compromise, and the lands described in the deed above-mentioned were conveyed as a part of the compromise, and that the suit was dismissed in consequence of that settlement.

Also the deposition of- Samuel St. Johns, one of the partners of the firm, who testified in substance as the witness Dunn, in relation to the settlement, and dismissal of the suit in consequence of it, and that the debt against the estate thus settled was large, and was not paid by the settlement by a large amount.

Also the deposition of John A. Campbell, who testified that he was solicitor for Benjamin Leavens in the suit in chancery, and that it was settled about the time the deed bears date ; that the negotiations which led to the settlement, were canned on whilst the parties were engaged in taking depositions in the suit, and were conducted under the professional advice of the law firm of which witness was a member, representing Benjamin Leavens, executor, and of George N. Stewart, who represented Butler and wife; that Leavens instructed witness to consent to no agreement for settlement unless it -was assented to by Butler, and he thinks that the most important, if not all the papers of the settlement, were drawn by Mr. Stewart, counsel for Butler and wife; that Butler assented to the settlement, and gave Leavens a writing to that effect. But witness had no conversation with Mrs. Butler on the subject, and could not recollect any personal interference by her in the matter; that he considered the settlement fair and favorable to the estate of Leavens, the debt claimed against it at the date of the settlement being over one hundred thousand dollars.

The defendants also offered two other transcripts of records in chancery in the State of Alabama, showing that Butler and wife had admitted by their bill in the one case, and by their answer in the other, the due execution and probate of the will of Joshua B. Leavens in that State.

To the reading of each of these several transcripts and depositions, the plaintiffs objected, and their objection was sustained, and all the transcripts and depositions were excluded as evidence; to which the defendant excepted.

Upon the competency and effect of the evidence thus rejected, several questions arise and have been argued by counsel; and we will proceed to consider such of them as appear to be material in settling the principles which govern the case.

We will first consider the action of the court in rejecting the record of the probate of the will in Alabama.

The rule is well established, that the conveyance of real estate must be made according to the law rei sitce, which alone can prescribe the mode in which title to such property, or any right or interest therein, may pass; and a will made and admitted to probate in a foreign State or one of the States of this confederacy, is not sufficient to pass title to land in another State where it is situate, unless the will be admitted to probate in the latter jurisdiction according to its laws. McCormick v. Sullivant, 10 Wheat. 202; United States v. Crosby, 7 Cranch, 115; Kerr v. Moon, 9 Wheat. 565; Carmichal v. Elmendorf, 4 Bibb, 484; Cornelison v. Browning, 10 B. Munroe, 428. This rule is not affected by the provision of the Act of Congress of 26th May, 1790, “ that the records and judicial proceedings of the courts of any State, shall be proved or admitted in any other court within the United States, by attestation, &c.,.and that said records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them, in every court within the United States, as they have by law or usage in the courts of the States from whence said records are or shall be taken.” Under this act the record of a judgment in one of the States is entitled only to such credit, validity, and effect in another State as it has in the State where it was rendered. But as a will disposing of real estate is only effectual for that purpose when made according to the law of the State where the land is situate, and its operation is entirely local, a probate in another State could give it no credit or validity there as to such land, and consequently under the provisions of the Act of Congress, it could give it none in the State where the land lay. Accordingly, the cases are numerous where probates of this character have been held insufficient to establish the will in another State where the land was situate, so as to pass the title. Barnes v. Brashear, 2 B. Munroe, 380; Varner v. Bird, 17 Ala. 290. Considering how well recognized the rule has always been that the title to lands can only be conveyed according to the law of the State where they are situate, it is .not to he supposed that it was the intention of the Act of Congress to give to another State, presumed to be unacquainted with the laws of the State where the lands are situate, the power to establish a conveyance, and, by the judgment of its courts render it effectual to pass the title; for that would give to a foreign tribunal power to establish a conveyance, and adjudge the title to land in another State, contrary to the positive laws of that State. It is much morb reasonable to suppose, that the act was intended to apply to judicial proceedings affecting rights of a personal or transitory character; and this we consider the proper construction of it. Hence the record of the probate from Alabama was not sufficient to establish the will, and it was properly excluded as evidence.

The next question arises upon the exclusion of the record of the probate in the Probate Court of Lowndes county.

There can be no doubt but that a copy of a will bearing upon its face the requisites of our laws in order to render it valid as to real estate, and shown to have been duly proved and admitted to record in another State, in which the testator had his domicil, may be admitted to probate in this State, and will be effectual as to lands lying here. Such is the plain effect of our statute upon the subject. Hutch. Code, 651, § 25. And the like effect has been given to such probates under similar statutes in other States. This is held in the cases above cited from Kentucky and Alabama, and 10 Wheaton.

But two objections are urged against the sufficiency of this probate. The first is, that the will appears upon the face of the authenticated copy from Alabama, to have been proved in that State by but one of the subscribing witnesses, there appearing on the face of the will to be three. The record shows that the executor “ proved the due execution of the will by the oath of John Elliott, one of the subscribing witnesses thereto, and of said codicil by the oath of Newton St. John, one of the subscribing witnesses to the same;” and that it was thereupon admitted to probate, &c. This showed sufficient proof of the will. When there appears by the face of the will to have been the requisite number of subscribing witnesses, the will may be proved by one, if he prove that it was duly attested by the others. And if the record state that it was duly proved by one of them and admitted to probate, and it does not affirmatively appear that that witness proved only the attestation by himself, and execution in his presence, it will be presumed that he testified to every fact necessary to due execution. Cornelison v. Browning, 10 B. Munroe, 425, 427, and the cases there cited.

This objection, however, is untenable for another reason. The copy of the will was <£ ordered to be admitted to probate, and recorded” in the Probate Court of Lowndes county. That act was clearly within the jurisdiction of the court, and it cannot be collaterally impeached, even if the court acted erroneously in its judgment as to the sufficiency of the original probate in Alabama. Griffith’s Admr. v. Vertner, 5 How. 786. It stands like any other judgment of a court of competent jurisdiction, and can only be declared invalid by a direct proceeding for that purpose.

The other objection is, that the admission of the will to probate in this State, was not made until the year 1854, and after the date of the deed from the executor under which the defendant claimed title, and after the commencement of this suit.

The codicil of the will under which the power to make the deed is claimed, is in these words: “ I do hereby declare and direct, and give full power and authority to my said executors (previously named) or the survivor of them, and shall have power, whenever, and from time to time, as they may think expedient and according to their discretion, to bargain, sell, convey, lease, release or incumber, or otherwise dispose of in fee or otherwise, all and any of my real estate, wheresoever the same may be situate, either for the purposes of paying debts, making divisions, or distribution, or when they shall think it beneficial for any purpose to do so, in which case the proceeds shall be distributed, kept, or applied, as the property is required to be by my said will, the true intent and meaning of this codicil being fully to affirm the dispositions of my said will, and the better to enable my executors to carry into effect, and the better to enable them to place the said property in such situation as may be convenient, and more beneficial and profitable, and by giving the power to sell and convey lands, to enable them more conveniently to benefit all parties interested in the bequests thereof.”

By the will he had previously given one fourth of his estate, real and personal, to his brother, Benjamin Leavens, to his sister Susan, one fourth part, and the residue to Ms daughter, Mrs. Butler.

It cannot be doubted, that a special power to sell the lands was conferred upon the executors by the codicil, and that they were capable of exercising it so soon as the will was admitted to probate. It was derived from the will, and the probate was but evidence of its execution, and not the foundation of the power granted to the executors, and this is especially true, as the power conferred was foreign and distinct from the ordinary office of the executors. When the will was probated in Alabama, the power granted had relation back to the death of the testator. The grant of letters was merely the establishment of the character of the executors, and operated as a sanction to their exercise of the special power granted to them,' in their character as executors by the will. The power in them was thus complete upon the probate of the will, and their undertaking the trust in Alabama ; and when the will was admitted to record in this State, it was merely for the purpose of authenticating the evidence by which the special power was established, and of rendering the prior right available here. But it was clearly neither the source nor the foundation of the power. Being the grant of a power not appertaining to the duties of an executor in the general administration of the estate, it comes within the rule laid down in the authorities in relation to the general powers of executors in England. “Such probate,” says Williams, “is, however, merely operative as the authenticated evidence, and not at all as the foundation of the executor’s title; for he derives all his interest from the will itself, and the property of the deceased vests in him from the moment of the testator’s death. Hence the probate, when produced, is said to have relation to the time of the testator’s death.” 1 Vms. Exors. 172 (2d Am. edit.) And it is laid down, that, though an executor may dispose of the property according to the will, before probate, yet if it be necessary to support the title so derived, the probate must be produced. Ib. 174. The rule is also sanctioned in Pool v. Flegan, 11 Peters, 211, and in Lewis and wife v. McFarland, 9 Cranch, 151. It would probably not be applicable, under our laws, to a case of disposition of property by an executor, which was strictly assets in his hands, and held by him only for administration. But in the present case, it applies with full force, and is a sufficient answer to the objection under consideration.

Another’, and a very material, question presented is, whether it was necessary that letters testamentary should be granted to the executor in this State, upon admitting the will to record here ? It is insisted, in behalf of the defendants in error, that as no such letters were granted here, the executor was never invested with the authority to exercise the power to convey the lands conferred upon him by the will, and hence, that his deed is void. This question is intimately connected with the one last considered.

The grant of letters testamentary, as authority to the executor to act, has reference to the personalty and the ordinary offices of administration. Generally, it has no reference to real estate, and can give no power over it to the executor. For aught that appears in this record, there was no personalty in this State to administer, and no necessity for a grant of letters here. The only necessity for taking any steps here, in relation to the will, appears to be, to make it evidence in our courts. The will granted a power not appertaining to the subject-matter of administration under the authority of our Probate Courts — a trust committed by the testator to the persons who should become his executors. In such a case, the executor derives his authority from the will, and not from letters testamentary; and such letters could have conferred no power over the land, except what was given by the will. It is true, his character and capacity as executor must be established by proof of the will. But when the will was admitted to probate here, and it was shown that he had taken upon himself the office of executor, the power to sell the land, which was independent of his appropriate functions as executor, became vested. Under the circumstances of the case, the only necessity for the grant of letters was to fix the person who was to execute the power granted by the will; and that having been done by the proper court of the testator’s domicil, it was unnecessary to obtain letters in this State; for they could have been useful only for the purpose of fixing the person to execute the power. In principle, the case is not distinguishable from that of a devise of a power to individuals, not executors, to sell lands lying in a different State from that of the testator’s domicil, in which the will was admitted to probate ; for, after the character of the executor has been once established, the person to whom the power is granted is fixed; and it is only necessary, in executing the power in another State, or in showing that the previous exercise of it is effectual there, to admit to probate, in the State, the will giving the power, and to show that the party exercising it is clothed with the character designated in it. The principles stated in the eases of Lewis and wife v. McFarland, McCormick v. Sullivant, and Carmichal v. Elmendorf, sustain this view.

Our statute does not contemplate the appointment of executors here in all cases, where an authenticated copy of a will admitted to probate in another State, may be ordered to be recorded in this State. Hutch. Code, 651, § 25. It does not prescribe that letters shall be granted in any case of the admission of such wills to probate here; and the manifest purposes which it was intended to answer, only render such letters necessary when required for the exercise of the appropriate offices of an executor, suing and being sued, and in the various acts connected with the administration of the personalty. But where the will conferred a power or interest which did not come within the jurisdiction of the Probate Court here, and yet rendered it necessary that the will should be admitted to probate here, nothing further could have been intended, than that the will should be admitted to record, and thereby established as a will affecting the rights of parties to property situate here, and disposed of by or under it, so as to render it evidence of the rights derived from it.

Hence, we are of opinion, that it was not necessary that letters testamentary should have been granted in this State, in order to render the deed of the executor valid. And it would follow, from the preceding views, that the deed under which the defendant claimed title was made under a will duly admitted to probate, and that the executor was empowered to execute it, and consequently that it is valid to convey title to the land.

But it is again objected, that the power to convey the land was given by the will to the two executors; and, being a matter resting in the discretion of both of them, that it required the joint deed of both of the executors, to make a valid conveyance; and, therefore, that the deed of Benjamin Leavens, as sole executor, is insufficient.

It is above seen that the power to sell was not strictly executo-rial in its character, but a trust independent of the proper duties of the executors. It arose from a will executed by a testator, domiciled and who died in Alabama, and which was admitted to probate there. The nature, obligation, and interpretation of the instrument, and the rights and powers arising under it, must be determined by the law of that State. Story’s Conf. Laws, §§ 262, 490, 479 a, 479 h, 479 m. And it has been decided by the Supreme Court of that State, in a suit involving this will, and between Leavens, the executor, and the plaintiffs in this action, that the power granted by this will might be exercised by the executor who qualified, and that it did not require the co-operation of both of the individuals named as executors in the will. Leavens v. Butler, 8 Porter, 380-394. This must be taken as decisive of the point, however different it may be from the rule which this court has held upon the same question, and in a case governed by our laws.

The next question arising, is the admissibility of the record of the suit in chancery, brought by the surviving partners of the testator against his executor and the plaintiffs in this action, and the depositions of the witnesses offered in evidence in relation to it. The purpose for which this evidence was offered, appears to have been to show that a large claim against the estate of the ancestor of the plaintiffs, had been discharged by means of the conveyance of the land in. controversy, and other lands, and that the settlement of this claim was beneficial to the estate, and the plaintiffs, the distributees of it. The objection to its admissibility is, that it could not affect the rights of Mrs. Butler, who was then a feme covert and a minor.

The evidence offered shows that the settlement was made by the solicitor of Butler and wife, and by the special consent of Butler ; that the claim against the estate was thereby discharged, and that the arrangement was beneficial to those entitled to the estate.

It is a general rule, that a party is estopped by a course of conduct by which he has induced others to act, or has acquired an advantage to himself. 1 Greenl. Ev. §§ 27, 207; and this rule is applicable to femes covert. Fonbl. Eq. book 1, ch. 3, § 4; 1 Story’s Eq. § 385. Whether the compromise of the suit in chancery was made by the positive sanction of Mrs. Butler or not, it appears that it was made by her solicitor with the concurrence of her husband; the suit against her was dismissed, and the claim against her discharged, in consequence of it. In the absence of all evidence tending to show that she was prejudiced in the transaction, these facts would go far to show that she consented to the arrangement. But, in addition to this, the fact that the estate in which she was interested was benefited by it, which must be taken as a benefit to her interest in it, concludes her from denying its validity, and from depriving the other party of the right which he has acquired thereby, without restoring that party to the position he occupied before the arrangement.

But as the chief justice is of opinion that this evidence was not competent, by reason of the disability of Mrs. Butler, no decision is made as to its admissibility.

The other two transcripts of records offered in evidence, appear to have been introduced for the purpose of showing admissions by the plaintiffs, that the will had been duly established. These proceedings took place with parties having no connection with the rights and interests involved in this suit, and the alleged admissions therein were incompetent to prove the execution of the will. They were, therefore, properly excluded.

We are of opinion that the court erred in excluding from the jury the copy of the bond of Benjamin Leavens, as executor, executed in Alabama, the exemplification from the Probate Court of Lowndes county, and therefore the judgment is reversed, and the cause remanded for a new trial.