24 Or. 542 | Or. | 1893
delivered the opinion of the court:
A brief statement of the facts is essential to the determination of the question involved. It appears from the transcript that W. H. Clayson, who was an inhabitant and resident of England, died in that country on the sixth day of October, 1890, leaving an estate therein, and also leaving an estate consisting of real property in Clackamas County, Oregon; that the deceased left a will dated the fifth of September, 1889, with a codicil thereto dated the the seventh of October, 1889; that said will and codicil was duly probated, proved, and registered in the Principal Probate Registry of Her Majesty’s High Court of Justice in England, and letters testamentary were duly granted thereon to Emma Jane Clayson, one of the trustees, and the executrix therein named, who, on the thirteenth day of January, 1891, was duly qualified and sworn to execute the said will, and is still acting in England as such trustee and executrix; that on the eleventh day of March, 1891, Charles Clayson, the appellant, of Portland, Oregon, filed a petition in the county court of Clackamas County
The question to be determined is, whether, upon the facts herein disclosed, the instrument offered in evidence
At the time of the testator’s death, and also at the date of his alleged will, section 3082, Hill’s Code, required a foreign will devising real estate located in Oregon, to be executed and proved according to its laws. Said section provides that “any person not an inhabitant, but owning property, real or personal, in this state, may devise or bequeath such, property by last will, executed and proved according to the laws of this state, or of the state, country, or territory in which, the will shall be proved.” If a person not an inhabitant, but owning real property in this state, died in a foreign country and left a will devising such property, and the will was admitted to probate in that country, its execution and the proof thereof would have to be sufficient if made in this state to convey real property therein, before the heirs will be devised of their title to it. The probate of a will in one state does not
As the facts disclose that the death of W. H. Glayson, and also the probate of his will in the foreign jurisdiction, occurred while the statutes cited were in force, it results, if such will is to have the effect to convey real estate in Oregon, that it must be shown to the satisfaction of the county court, either by proof furnished to it or by certified copies of the will and the probate thereof, showing that in the execution, attestation, and proof of the will the requirements of the law of this state were observed, and that the record of such probate — it being a judicial record — be duly authenticated as required by section 731. The paper offered in evidence, purporting to be the last will of W. H. Clayson, does not meet these requirements. The proof upon which the foreign probate was granted is not disclosed so as to show to the court that the alleged will was executed and proved according to the laws of Oregon, nor
From these considerations it follows that there was no error in refusing to admit such alleged will to probate and record; and that the decree of the circuit court be reversed and the cause remanded for such further proceedings as may be deemed proper and not inconsistent with thi« opinion. Reversed.