188 Iowa 743 | Iowa | 1920
The only question for our determination is whether or not, under the provisions of Section 3294, the will should have been admitted to probate as the last will and testament of decedent.
There is no question made as to the probate in Nebraska. He had real estate in Nebraska, and the Nebraska court had jurisdiction to probate the will. There is po question that the original record of probate in said court was duly authenticated and attested, as required by the laws of this state. The determination of this case involves the proper construction to be given to Section 3294, its scope and purpose, and what is intended to be covered by it. This section deals only with foreign wills, probated in the court of the domicile of the testator: that is, where a will has been duly probated at the domicile of the testator, in a foreign state, it may be admitted to probate in this state as a foreign will, upon compliance with the terms of the statute.
In dealing with the subject of wills, and in considering the legal effect of the probate thereof, a distinction between domestic wills and foreign wills must always be kept in mind. When Section 3294 says, “a will probated in any other state or country shall be admitted to probate in this
It follows that the probate of a will in any state or
“Authenticated copies of wills proved according to the laws of any of the United States, or the territories
In the Bate case, the Supreme Court of Mississippi said:
“In the case we are now considering, the will is not such as the statute was passed for. The chancery court * * * did not have jurisdiction over an authenticated copy of it, but could only admit to probate the original will. [It appears that the will was probated in the courts of Tennessee.] * * * But, if the record of the probate of the will in Tennessee had shown that it was duly proved by the three attesting witnesses [as required by the laws of Mississippi], an authenticated copy could not have been admitted to probate here, because the statute does not embrace it.”
It was further held that the provisional statute authorizing the admission of foreign wills, upon presentation of duly authenticated copies of the probate in a foreign state, related only to the probate of foreign wills of testators domiciled in the state in which the probate was had, and not to the probate of wills made by persons domiciled in the state of Mississippi, probated in a foreign state. It was said:
“This will was provable in Tennessee, whose courts had jurisdiction of it, as affecting property situated in that state; but, the domicile of the testatrix being in Mississippi, her will must be proved here according to our law, in order to be operative on property situated in this state.”
The syllabus of the case reads:
“An authenticated copy of the probate in Tennessee of a will whose maker is domiciled in Mississippi, is not admissible to probate in this state under Code 1871, Section 1105, so as to operate on property here, although exe
In the case of Succession of Gaines, 45 La. Ann. 1237, the court had to deal with a question very similar to the one here, especially so far as the legal phase of this case is concerned. It seems that one Myra Clark Gaines died in the city of New Orleans, on the 9th day of January, 1885, leaving two wills, one dated New Orleans, January 8:, 1885, and another dated New Orleans, January 5, 1885. These wills were presented for probate to the civil district court for the parish of Orleans. The will of January 5th was resisted, on the ground that it had been superseded by the will of January 8th, and was defective in form. Resistance was made to the will of January 8th on the ground that it was a forgery. These matters were tried out in the civil court, resulting in a finding and decree that the will of January 8th was fraudulent and forged, and not entitled to probate, and that the will of January 5th was defective in form, and, therefore, not entitled to probate, reserving, however, the right of the executors to propound the same for probate at the domicile of the deceased. Appeals were taken from this. While these appeals were pending in the Supreme Court of Louisiana, the will of January 5th was duly admitted to probate in the surrogate court of Kings County, New York, that being the domicile of Myra Clark Gaines at the time of her 'death. On the 11th day of December, 1892, a certified copy of the probate in the state of New York was submitted to the civil district court of the parish of Orleans, for admission to probate. Objections were made to its admission in the parish of Orleans, because it had been adjudged by the Orleans probate court that it was not a valid will, and not entitled to probate, and because Mrs. Gaines did not die in the state of New York, but died domiciled in the state of Louisiana, and had no property within the jurisdiction of the surrogate court of Kings
“The domicile of the deceased being the place of the opening of the home or mother succession, — the succession proper, — the court of that domicile is unquestionably authorized to have presented to it an instrument purporting to be the last will and testament of the deceased, and, after due proceeding and inquiry had, to determine whether it be such last will, under the laws of the place of the domicile. In the matter before us, the surrogate, in a proceeding to which the surviving executor and the legal heirs and next of kin of Mrs. Gaines were parties, had propounded before his court for probate the will of the 5th of January, 1885, and, after hearing, pronounced it the last will and testament of Mrs. Gaines, probated it, and ordered its execution.”
The fourth ground of opposition assigned, and one which was sustained by the district court, was “that a will made in Louisiana and rejected by its courts, could have no effect in Louisiana, although it may be admitted to pro
“In maintaining this ground of opposition, refusing the application, and rejecting the will, we are of the opinion the court erred. * * * The question before him was not whether the instrument purporting to be Mrs. Gaines’ will should be probated here, as a matter of original probate. That had been once attempted in his court, and failed, the court, however, properly recognizing the right of the parties in interest to propound it later for probate at the domicile. The parties in interest acted upon that suggestion. * * * When brought a second time before the civil district court, the case was presented under entirely different conditions, * * * the object of the demand being also essentially different. In the case at bar, the court was not called on to deal directly with and on the instrument as a matter still In -pais, for the purpose of determining whether it was really the last will and testament of the deceased. The question had passed on to and been determined by a court competent and authorized to do so, and was merged in the judgment of that court. What the court was asked to do was to recognize and give effect to the judgment itself, and, as resulting from that judgment, to recognize and give effect to the adjudication made on it that a particular instrument, identified with and by the judgment, was really the last will and testament of Mrs. Gaines, made and executed according to the laws of the state in which she had her domicile, at the time of its making and at the time of her death.”
The court further said:
“Her succession was instantly opened by the fact of her death at the place of her domicile. That result was totally independent of her having property at that time in the county of Kings, or in the state of New York. Whether, when she died, her succession was, as to its character, a legal or a testamentary one, was a question necessarily to
But, if probated in any other state than the state of his domicile, the probate has no extraterritorial force, and operates only upon the property within the jurisdiction of the court so probating, and an authenticated copy of such proceedings in probate, upon .presentation in a foreign state, does not justify the probate of the will at the place of domicile.
This construction of the statute closes the door to possible fraud, such as we have suggested.
We think the court was wrong in admitting the will of
For a further discussion of the question here under consideration, see note to Tremblay v. Aetna Life Ins. Co., 97 Me. 547 (94 Am. St. 521, 558) ; also, Sullivan v. Kenney, 148 Iowa 361.
The case is, therefore, reversed and remanded, with directions to proceed further in harmony with the opinions herein expressed. — Reversed cmd remanded.