130 Ky. 445 | Ky. Ct. App. | 1908
Opinion of the Court by
Affirming.
One John McIntosh died m the year 1859, testate, domiciled in Davidson county, Tenn. At the June term, 1859, of the Davidson county court, a court of •probate jurisdiction, his will was duly probated. In this will the testator disposed of his estate in Tennessee, and then gave to one of his sons a ad to his daughter, Louisa E. Foster, for her life, with remainder over to her children, and to a grandchild, certain real estate located in Hickman county, Ky. About the year 1865 the grandchild of McIntosh, to whom he devised an interest in the Kentucky land, sold and conveyed his interest to one Utterbaek. Some time after that, Utterback, Frank McIntosh, and Louisa E. Foster instituted an action in the Hickman, county court and had the land divided among them, and a conveyance was made to Louisa E. Foster in fee for her portion of the land. Soon after this she sold the part allotted
The right of a purchaser from an heir of a testator to resist the probating of his will has been conclusively settled by this court. See the cases of Brooks v. Paine’s Exor., 123 Ky. 271, 90 S. W. 600, 29 Ky. Law Rep. 699; Davies v. Leete, 111 Ky. 659, 64 S. W. 441, 23 Ky. Law Rep. 899, and the cases there cited. In the Davies-Leete case, this court, in discussing this question, said: “The statutes use the words 'persons interested’ (secs. 4856, 4861, Ky. Stats., 1903) in defining who are proper or necessary parties t'o probate proceedings. We are of opinion that any person' whb claims title under any one an heir ai¡ la,w of* thé tes
The only other question to be determined is whether the statute of limitation interposed by appellee is a bar to the probating of the will at this time in this State.
Appellants’ contention is, as the will was probated in Tennessee, within the proper time, and in the State of the residence of the testator, the statutes of limitations do not apply to the probating of the will in this State, but concedes that the probating of it would be barred if it had been made in this State, or if it had never been probated in the State of Tennessee, and referred to the cases of Allen v. Froman, 96 Ky. 313, 28 S. W. 497, 16 Ky. Law Rep. 634; Johnson v. Bard, 54 S. W. 721, 31 Ky. Law Rep. 999, and Morrison v. Fletcher, 119 Ky. 488, 84 S. W. 548, 27 Ky. Law Rep. 124, as supporting their contention. We do not so construe the authorities cited. In the Allen-Froman case there was an attempt to probate the will of George Coil,, who died in the State of Alabama, the place of his domicile, and the statutes of limitations were pleaded against the probating of it in this State. The court, in.considering the question, incidentally mentioned the fact that the will had never been probated in any court of Alabama, and determined that the 10-year statute of limitation applied and was a bar to the probating of the will in this State, but did not intimate
The will in this case was probated in the Hickman county court under section 4854, Ky. Stats., 1903, which is as follows: “When a will of a non-resident relative to estate within this Commonwealth has been proved without the same, an authenticated copy and the certificate of 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 evidence to the contrary, that the will was 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
This court decided, in the Allen-Froman case, that section 2522, Ky. Stats., 1903, which is as follows: “An action for relief not provided for in this or some other chapter, can only be commenced within ten years next after the cause of action accrued” — applied to the probating of wills made by persons domiciled in this State,.and wills made by non-residents when not probated in the State of the testator’s residence. This case has been followed and approved by this court in the cases of Reid’s Admr. v. Benge, 112 Ky. 810, 23 Ky. Law Rep, 2202, 66 S. W. 997, 57 L. R. A. 253, 99 Am. St. Rep. 334, and Cleveland Orphan Institution, etc., v. Helm, etc., 74 S. W. 274, 24 Ky. Law Rep. 2485. In the last ease cited the court said: “We are of the opinion that the principles stated in the case above referred to are sound and should be upheld, for the reason that the public have a great interest in having a known limit fixed.by law for litigation fon the quiet of ihq community, and that there may be a certain fixed period after which the possessor may know that his title and right can not be called in question or harassed by stale demands after witnesses of the facts are dead.” It is contended that section 2522, Ky. Stats., 1903, applies alone to actions for relief. It is true the word “action” only is used, but section 459, Ky. Stats., 1903, is as follows: “Thd term ‘action’
The probation of the will of McIntosh in Tennessee had no legal effect whatever on his lands in Kentucky. By the probation of theVill in Tennessee his property in that State was affected, and the title thereto fixed. His real estate in Kentucky could not be affected by the will, except by probating it here. See the cases of Sneed v. Ewing, 5 J. J. Marsh. 465, 22 Am. Dec. 41, and Cornelison v. Browning, 10 B. Mon. 425. In the last-named case the court said.: “It is an acknowledged principle’of law that the title and disposition of real property is exclusively subject to the laws of the county where it is situated, which alone can prescribe the mode by which it can pass from one to another, and no title to land passes by will unless it is executed, proved, and registered conformable to the laws of the place where the property is situated.” In this opinion it is decided that no title passes to real estate in this State until and unless such will is executed and probated in this State according to our laws. We can not see any reason why the statutes of limitations might be interposed to prevent the probating of a will of a persomdomiciled in this State or domiciled in- another State, when the will has not been probated there, and not making it apply to the will of a non-resident when the will is recorded at the late domicile of the testator. The' purpose of probating a will where the land is situated is to give notice of the title that the pur
For these reasons the judgment of the lower court is affirmed.