73 So. 442 | Ala. | 1916
This is an .action of statutory ejectment, instituted by the appellant against the appellees, to recover the possession of certain real estate situate in Houston county, Ala. The litigation arose out of the conflict resulting from the probate of two alleged wills of Thomas W. Ansell, deceased, one in and through the courts of the state of Georgia and the other in and through the probate court of the State of Alabama. _ Under the testamentary instrument probated in the courts of the state-of Georgia, the appellant, Mittie E. Frederick, who was named as executrix therein, would succeed to the right and title of Thomas W. Ansell in and to the real estate in question. Under the testamentary instrument probated in the Alabama court, executed subsequent to the Georgia will and by its terms revoking all previous wills, the appellee J. H. Wilbourne and his successors in asserted right and title would succeed to the right and title of Thomas W. Ansell in and to the real estate in question. One
Thomas W. Ansell died in Macon, Ga., on December 19; 1911. He owned property in the states of Alabama and Georgia. On December 10, 1910, he executed in Bibb county, Ga., a testamentary instrument, whereby he bequeathed and devised all his property to his sister, Mittie E. Frederick, the appellant. In the opening sentence of this instrument he asserted, in effect, that his domicile was in the city of Macon, Bibb county, Ga. On December 27, 1911, following a petition to probate this instrument in common form, the court of ordinary of Bibb county, Ga., effected' probate thereof in common form. Under this proceeding letters testamentary were issued by the Georgia court to the appellant. On January 23, 1912, J. H. Wilbourne filed his petition in the probate court of Houston county, Ala., asking the probate therein of a testamentary paper executed by Ansell on August 8, 1911, which, if made effectual as a will, established said Wilbourne as the sole legatee and devisee of Ansell, and named Wilbourne as its executor. In the testamentary instrument thus exhibited to the probate court of Houston county, Ala., it was recited that Ansell was a resident of Dothan, Houston county, Ala. In this petition for probate of the instrument of date August 8, 1911, no affirmative allegation of Ansell’s place of domicile at the time of his death was made. The petition does aver the death of Ansell, and the fact that he left assets in Houston county, Ala. On that date, January 23, 1912, the probate court of Houston county set the hearing of Wilbourne’s petition for February 19, 1912; and provided for notice of the filing and of the time set for the hearing of this petition by personal service and by publication to parties in interest; but this hearing was later regularly continued by the probate court of Houston county to March 11, 1912. On February 6, 1912, Mittie E. Frederick filed a petition in the court of ordinary of Georgia, whereby the probate in solemn form of the testamentary instrument of date December -10, 1910, was sought. The Georgia court set the hearing of this petition for the first Monday in March, 1912, and directed that notice, to resident and nonresident parties in interest, of the hearing to thus probate in solemn form should be given, and it was given in accordance with the statutes of the state of Georgia. On March 4, 1912, J. H. Wilbourne filed his
The following statutes of the state of Georgia (Civ. Code 1910), appear from the evidence to have been in force at the time the mentioned proceedings were there had:
“Sec. 3855. Probate of a will may be either in common or solemn form. In the former case, upon the testimony of a single subscribing witness and without notice to any one, the will may be proved and admitted to * ' * * record. But such probate and record is not conclusive upon any one interested in the estate adversely to the will; and if afterwards set aside, does not protect the executor in any of his acts further than the payment of the debts of the estate. Purchasers under sales from him, legally made, will be protected, if bona fide and without notice.
“Sec. 3856. Probate by the witnesses, or in solemn form, is where, after due notice to all the heirs at law, the will is proven by all the witnesses in existence and within the jurisdiction of the court, or by proof of their signatures and that of . the testator, the witnesses being dead, and ordered to record; such probate is conclusive upon all the parties notified, and all the legatees under the will who are represented in the executor.
“Rec. 3857. Probate in common form becomes conclusive upon all parties in interest, after the expiration of seven years from the time of such probate, except minor heirs at law, who require
“Sec. 3858. Probate in common form may be taken by the ordinary at any time during vacation, but the order admitting the will to record and granting letters testamentary, shall be granted at a regular term.
“Sec. 3859. Notice of a motion for probate in solemn form must be personal, if the party resides in the state, and at least ten days before the term of the court when the probate is to be made; if the residence be without the state, or unknown, then the court shall pass such order, as to publication, as will tend most effectually to give notice. The records of the court shall show the persons notified, and the character of the notice given.”
“Sec. 3864. The original will when proved and recorded, shall remain on file in the office of the ordinary, and certified copies thereof shall be evidence in any cause and in any court in this state.”
(1) Since the Georgia statute (section 3855, ante) forbade any character of notice, to parties in interest, of the proceedings to probate in common form, and since that statute expressly denied to the proceedings to probate in common form any effect that could or would conclude persons adversely interested to the will as these appellees were, the fact of the court of ordinary in probating the Georgia will in common form was in consequence of a proceeding ex parte only, and was without any prejudicial or concluding operation upon the rights of the defendants (appel-lees) in this action. Though expressed by a court, the declaration of probate in common form did not rise to the dignity of a judgment to which, under the Constitution of the United States (article 4, § 1), and the act of Congress (U. S. Comp. St. 1913, § 1519), full faith and credit were, in any degree, due to be extended by the courts of other states.—Rose v. Himely, 4 Cranch, 241, 277, 2 L. Ed. 608; Windsor v. McVeigh, 93 U. S. 274, 23 L. Ed. 914; Hassall v. Wilcox, 130 U. S. 493, 504, 9 Sup. Ct. 590, 32 L. Ed. 1001; Robertson v. Pickrell, 109 U. S. 608, 3 Sup. Ct. 407, 27 L. Ed. 1049; Overby v. Gordon, 177 U. S. 214, 222, 223, 20 Sup. Ct. 603, 44 L. Ed. 741. So, for the purposes of the determination of the rights of the parties to the subject-matter in
“ (1) If the will has been admitted to probate out of the state, but within the United States, such will, or a copy of the same, 'and the probate thereof, must be certified by the clerk of the court in which the same is proved, with the certificate of the judge, or one of the judges of such court, that the attestation is genuine, and by the proper officer; and if the will is proved before a court not having a clerk, or before an officer who is his own clerk, the certificate of the judge of such court or officer, stating such fact, is sufficient.”
(2) A due regard for the security, independence, and dignity of a sovereign state requires that the lex rei sitse shall govern exclusively the devise, descent, or heirship of real estate within its jurisdiction.—Brock v. Frank, 51 Ala. 85, 88, 89; Overby v. Gordon, supra.
(3) The probate of a will, in a court jurisdictioned to so decree, is a proceeding in the nature of a proceeding in rem, and a decree or judgment granting probate has the force and effect usually attributed to adjudication in rem.—Deslonde v. Barrington, 29 Ala. 92; Dickey v. Vann, 81 Ala. 425, 8 South. 195; Martin v. King, 72 Ala. 354; Leatherwood v. Sullivan, 81 Ala. 458, 1 South. 718; Brock v. Frank, supra; note at page 557-559, 94 Am. St. Rep. When the power of a court, possessing adequate jurisdiction, is properly invoked to probate a testamentary instru
(4) Even though a contest of the right to probate the instrument is seasonably instituted — thus and thereby, in a measure, creating a suit inter partes — still “the estate of the testator is not interested;” for the result of the contest will not serve to affect the quantum of the estate in any degree.—Kumpe v. Coons, 63 Ala. 448, 455.
(5) The issue in a proceeding to probate a testamentary instrument is will or no will.—Matthews v. McDade, 72 Ala. 377, 386. It is the determination of the status of the testamentary instrument propounded for probate that affords the res upon which the court’s jurisdiction is visited.—Martin v. King, 72 Ala. 354, 360.
(6) It, therefore, appears that the res submitted to, and invoking the jurisdiction of, the probate court of Houston county, Ala., through the petition, filed January 23, 1912, to probate the testamentary instrument of date August 8, 1911, was a subject-matter distinct from the res submitted to, and invoking the jurisdiction of, the Georgia court of ordinary, through a petition filed February 6, 1912, to probate the testamentary instrument ■of date December 10, 1910. Even though it should be assumed that at the time of his death Ansell’s domicile was in the state of .Georgia, and, also, that the testamentary instrument of date August 8, 1911, was a foreign will, it was not a condition precedent to the attaching of the jurisdiction of the probate court of Houston county, Ala., upon the petition filed therein January 23, 1912, that the testamentary instrument of date August 8, 1911, should be probated in the state of testator’s thus assumed place of domicile.—Varner v. Bevil, 17 Ala. 286; Code of Alabama, § 6182, subd. 3. It appears, incontestably, that the testator left real estate in Houston county, Ala.
(7) It might be soundly asserted that, since Ansell himself affirmed the place of his residence to be, on August 8, 1911, at Dothan, Houston county, Ala., and since the decree of the probate
(8) While it is not of any particular importance, we may further note, in this connection, that the ascertainment by a court of competent jurisdiction of the fact and place of domicile of a decedent in a proceeding in rem will not conclusively bind the courts of other sovereign jurisdictions as to the fact and place of domicile of the decedent.—Overyby v. Gordon, 177 U. S. 214, 20 Sup. Ct. 603, 44 L. Ed. 741; Robertson v. Pickrell, supra.
(9) The probate court of Houston county exercised its lawful authority to hear and to determnie whether the testamentary instrument exhibited to it was Ansell’s last will and testament. Its powers were exercised and became effectual in a final decree rendered on March 11, 1912. There was no contest instituted by those who were adversely interested to' that will. This decree was “a solemn declaration,” upon the particular subject-matter, “proceeding from an accredited quarter, concerning the status of the thing adjudicated upon, which very declaration operated [operates] accordingly upon the status of the thing adjudicated upon, and, ipso facto, rendered [renders] it such as it is thereby, declared to be.” — 2 Freeman on Judg. § 606, pp. 1047, 1048; Martin v. King, 72 Ala. 360. The decree probating the instrument of date August 8, 1911, has not been set aside or reversed; nor has its force or effect been annulled in consequence of a successful contest of the instrument’s validity as a will under the provisions of the Code of Alabama, § 6207, which reads: “Any person interested in any will, who has not contested the same under the provisions of this article, may, at any time within the twelve months after the admission of such will to probate in this state, contest the validity of the same by bill in chancery, in the district in which such will was probated, or in the district in which a material defendant resides.”
A longer period within which a contest under section 6207 may be instituted is prescribed by section 6208 of the Code for those under -disability.
It is therefore clear that unless the proceedings begun, subsequently, in the Georgia court on February 6, 1912, to probate in
Our opinion is that the courts of the state of Georgia were powerless to suspend the jurisdiction of the probate court of Houston county, Ala., which was awakened to active exercise on January 23, 1912, when J. H. Wilbourne filed his petition therein to probate the will of date August 8, 1911. It appeared from'the petition that Ansell died seised and possessed of real estate situate in Houston county, Ala. There was then pending in this state no proceeding for the ancillary probate of any other testamentary instrument than that submitted to the jurisdiction of the probate court of Houston county through the petition of January 23, 1912, As stated, the probate court of Houston county, Ala., was a tribunal adequately jurisdictioned to determine the status of the testamentary instrument there propounded. This court, in Worthy v. Lyon, 18 Ala. 784, expressly recognized the principle, suggested by considerations which would avoid a conflict of jurisdictions wherefrom would attend great inconvenience and hardship, that the courts of this sovereignty would not attempt to entertain jurisdiction of the administration or settlement of an estate when those functions have been rightfully and previously entered upon by the courts of another sovereignty in respect of -a subject-matter within the control of that other sovereignty.
A like principle must have application in this instance where the subject-matfcer is real estate situate in this state.
(10) Except as this state, through legislation, has expressed its consent to the probate- of a foreign will under the circumstances stipulated in-section 6191 of the Code of Alabama, this
(11) Just as the petition of January 23, 1912, to probate in the Alabama court the instrument of date August 8, 1911, preceded the petition of February 6, 1912, to probate in solemn form in the courts of Georgia the instrument of December 10, 1910, so the decree of the probate court of Houston county, rendered March 12, 1912, probating the instrument exhibited to it, preceded the decree of the Georgia court, granting probate in solemn form to the instrument there propounded for probate. Our conclusion is that the decree of the probate court of Houston county, rendered on March 12, 1912, established the testamentary instrument of date August 8, 1911, as the last will and testament of Thomas W. Ansell governing the devise of the land involved in this suit. A necessary consequence of this conclusion is that the probate court of Houston county, Ala., was without jurisdiction to contradict, set aside, and annul its older, valid decree rendered March 11, 1912, through the attempted ancillary probate on November 6, 1913, of the testamentary instrument of date December 10, 1910, previously probated in solemn form in the courts of Georgia. The act, in that respect, of the probate court of Houston county, was wholly void.
(12) The other proposition pressed for appellant is that the judgments of the courts of Georgia, assuming to there probate in solemn form the testamentary instrument of date December 10, 1910, operated to estop the appellees by the application of the doctrine of res ad judicata to claim or to assert any right to the land lying in Alabama in consequence of the decree of the probate court of Houston county, Ala., probating the testamentary instrument of date August 8, 1911. In the caveat filed by Wilbourne on March 4, 1912, the fact that the testamentary instrument of date August 8, 1911, had been offered for probate under the laws of Alabama, a proceeding then pending to adjudicate upon the res submitted to the Alabama court, was brought to the attention of the Georgia court of ordinary. Subsequently, on May 29, 1912, and before the court of ordinary entered its judgment in the premises, Wilbourne presented to that court the further fact that the probate court of Houston county, Ala.,
Affirmed.