Davies v. Leete, 111 Ky. 659

Davies v. Leete

111 Ky. 659 | Ky. Ct. App. | 1901

Opinion of the court by

JUDGE O’REAR

Reversing.

Mary MeNichols, a resident of the State of Ohio, died' in the year 1882. She was an unmarried daughter of Patrick McNiohols. From a paper alleged to be ‘her last will it appears that she attempted to dispose of all her property to her sister, Sarah J. Holland (now Sarah J. Leete). This paper was offered for probate, it is -said,, to the proper court in Ohio, in February, 1.883, but seems not to have been acted on till October, 1898, when it was probated. Thereafter, in. January, 1899, am exemplified copy -of the probate proceedings on the will referred to was tendered in the Greenup county court of this State-*664for probate rand record. It is stated that the testatrix owned real estate in that county. After the death of the testatrix, and before the alleged will was probated in Ohio or offered in Kentucky, Patrick McNichols, as heir at law of his deceased daughter, Mary, sold the Greenup county real estate which she 'had owned at her death' to one Murphy, who in turn, and1 before the 'Offering of the will, it seems, sold and conveyed it to appellant, who was said to be in possession under those conveyances in January, 1899, when the paper was offered for probate in Kentucky. The Greenup county court, in an ex parte proceeding, probated the paper as the will of Mary McNichols. This proceeding was under section 4854, Kentucky Statutes: “When the will of a non-resident relative to estate within this Commonwealth has been proven without the same, *an authenticated copy and the certificate of the probate thereof may be offered for probate in this Commonwealth. When' such copy is so offered, the court to which it is offered shall presume, in the absence of evidence1 to the contrary, that the will w.as duly executed and admitted to probate as a will of personalty in the State or county of the testator’s domicile, and shall admit such copy to probate as a will of personalty in this Commonwealth. And if it appears from such copy that the will was proved in the foreign court of probate to have-been so executed a» to be a valid will of lands in this Commonwealth, by the law thereof such copy may be admitted to probate as a will of real estate.” In March, 1900 appellant filed in the Greenup circuit court a transcript of the proceedings in the county court, and with it his petition averring that he was the owner of the real estate affected, by the will, and the sole party in interest, opposed to appellee, and asked leave to prosecute an appeal from the judgment of *665the county court probating the will. This application was under our statute allowing any party in interest within five years from the probate in the county court to appeal to the circuit court where the trial shall be anew. A special demurrer was filed to his petition, because he did not show that he was “a party in interest” in decedent’s estate, within the meaning of our statutes; that is, that he was not an heir at law nor creditor of the testatrix. This demurrer was sustained, and his appeal dismissed. It is to review that judgment that the case is brought here. The petition did not state the nature of appellant’s interest, though it alleged'that he was “an interested party.” However, we think this objection was not so subject to the general or special demurrers filed as it was to a motion to require appellant to define more specifically the nature of his interest, and the particular part of the estate in which interested. However, it is freely admitted in argument at the bar, and so treated by both parties, that appellant’s interest is as stated' above, and we have decided to adopt that as a basis for discussing the important legal questions involved, ignoring such deficiencies as are purely technical, and not founded in apparent merit. It is not questioned that the regulation of the manner of transmitting title to real esate is subject exclusively to the law of the sovereignty wherein the land is located. By the common law, wills devising real estate were required to be proved upon the trial in suit involving the title, and that they may have been probated in the ecclesiastical courts gave them no authenticity even as against heirs at law of the testator. Indeed, if the will disposed of realty only, it seems that the ecclesiastical courts had no jurisdiction of them. In the American States and this State this inconvenient rule has *666been changed to the extent that where a will devises land, when probated in the tribunal having jurisdiction of such matters .it becomes binding on not only the parties who may stand in inheritable relationship to the testator^ but is binding, as a proceeding in rem, on all the world. Whalen v. Nisbet, 95 Ky., 464 16 R. 52, 26 S. W., 188; Miller ,v. Swan, 91 Ky., 36 (12 R. 629) 14 S. W., 964; Thompson v. Beadles, 14 Bush, 47; Mitchell v. Holder, 8 Bush, 362. The plainest dictates of justice would then require that to such a proceeding affecting the title to his real estate any one interested therein should be permitted to appear, and contest the1 validity of the will which is to have such an effect. King v. Bullock, 9 Dana, 41; Singleton v. Singleton, 8 B. Mon., 340; Wiggin v. Swett, 6 Metc. (Mass.) 194 (39 Am. Dec., 716); Mower v. Verplanke, 105 Mich., 398, (63 N. W., 302); Bryant v. Allen, 6 N. H., 116; Watson v. Alderson, 146 Mo., 333 (48 S. W., 478), (69 Am. St. Rep., 615). The statutes use the words “persons interested" (sections1 4856-4861, Kentucky Statutes) in defining who are proper or necessary parties to probate proceedings. We are of opinion that any person who claims title under any one an heir at law of the testator, as well, perhaps-, as any creditor of such heir at law, if the heir be insolvent, may become a party to such proceedings under the above, clause. This would1 not, of course, admit a stranger to testator’s title, or one claiming under a title hostile to his, to contest the will, in -order that he might destroy a link in his adversary’s chain of title (Johnson v. Bard [Ky.] 54 S. W., 721); nor would it admit any relation not an heir at law or such creditor (Tinker v. Ringo’s Ex’rs [11 R. 120] 11 S. W., 605; Biggerstaff’s Ex’rs v. Biggerstaff’s Admr, 95 Ky., 154 (15 R. 725) (23 S. W., 965). It follows that the circuit court *667erred in denying appellant tbe right to prosecute the appeal and contest the will. The judgment is reversed, and remanded for further proceedings not inconsistent herewith.