97 Mo. 223 | Mo. | 1888
This is a suit between the children and grand-children of James M. Keith for the partition of two hundred and eighty acres of land in Lafayette county. John Johnson is a defendant because of a deed of trust held by him on two hundred and forty acres of the same land.
On the first trial, the court held the deed of trust to
The facts are these: James W. Keith, who was the father of James M. Keith, died a resident of the state of Kentucky, leaving a last will which was probated on the twenty-sixth of May, 1851, in the county court of Clark county, in that state. James M. Keith then resided on the land in suit, but it is admitted that the title was in James W. Keith at the time of his death. The will, after giving a description of the land in suit, disposes of it by the use of these words : “I hereby will and direct that a good and sufficient deed for said land shall be made by my executors to my said son James for and during his life and at his death in fee to his children.” The nominated executors declined to act, and the court granting the probate appointed Houston and Downing administrators with the will annexed, who made a deed to James M. Keith, giving him a life estate, remainder to his children; this deed of the foreign administrators bears date May 13, 1858, but was not. recorded in Lafayette county until April 17, 1879, and nine or ten days after the death of James M. Keith. The deed was found among his papers after his death. The deed of trust from James M. Keith to Tutt, trustee for Johnson, was executed some two years before the death of James M. Keith and was made to secure money then loaned Keith. The will was never
1. The deed from the foreign administrators to James M. Keith is an instrument which comes within the provisions of our recording acts, and should have been recorded. As it was not recorded when Johnson made the loan and took the deed of trust, he cannot be charged with constructive notice of it. It is not shown that he had actual notice. As to him, then, there was no such deed, and it is therefore unnecessary to determine the question whether th ese foreign executors had or had not the power to make a valid deed to lands in this state. The deed, good or bad, is out of the case so far as the appellant, Johnson, is concerned. But if Johnson is to be charged with constructive notice of the will, then it is immaterial whether he had notice of the deed or not, for the will shows that James M. Keith was to have a life estate only in the land. •
The question, then, is whether Johnson is to be ■charged with constructive notice of this foreign will. Our statute provides that any person owning real property in this state may devise the same by last will, executed and proved according to the laws of this state. Section 3993 enacts ’“Authenticated copies of such wills and the probate thereof shall be recorded in the same manner as wills executed and proved in this state, and shall be admitted in evidence in the same manner and with like effect.” Section 3994 is in these words : “ Any such will may be contested and annulled, within the same time, and in the same manner, as wills executed and proved in-this state.” Other sections provide that wills proved in this state shall be recorded by the clerk of the probate court in a book to be kept for that purpose. It was not necessary that this will should have been proved anew in Lafayette county, but the will being executed and probated in Kentucky in a manner complying with our law, it was sufficient to
No principle of law is better established in the United States than this, that the transfer of title to real estate must be in accordance with the law of the state where the property is situate. So a will, to be of any validity as a transfer of title to land, must be executed, attested and probated in the manner prescribed by the law of the state where the land is located. Cabanne v. Skinker, 56 Mo. 357; Story on Conflict of Laws, sec. 474; McCormick v. Sullivant, 10 Wheat. 192, and cas. cit.; Lucas v. Tucker, 17 Ind. 41; Jarman on Wills, 1; 1 Red. on Wills. (3 Ed.) 398; Whart. on Conflict of Laws, sec. 587. It would seem to follow from this general principle that if the laws of this state dispense with proof anew of a foreign will, then such laws must be complied with in order to give the foreign will the force and effect of a proved domestic will, and this is the clear ruling in the case of McCormick v. Sullivant, supra, and it is also the deduction to be drawn from what was said in Cabanne v. Skinker, supra. In McCormick v. Sullivant, supra, the contest was over lands located in Virginia and Ohio. Says the court in that case: ‘‘We are all of the opinion that the probate of a will in Pennsylvania cannot be considered as constructive notice to any person of the lands in
But we are met with the argument that, because the federal constitution and the act of congress and the statute of this state (R. S. 1879, sec. 2321) all provide that the records and judicial proceedings of the courts of other states shall have such faith and credit here as they have in the courts of the states from whence they are taken, that therefore we must give to this foreign probate full force and effect, and for this reason the will may not only be read in evidence here, but is constructive notice to persons dealing with lands in this state, though not recorded here. It is conceded that the probate of a will made in conformity with our law is a judicial act. This we have often held. 31 Mo. 40; 43 Mo. 19; 48 Mo. 131; 72 Mo. 312. It was assumed in Bright v. White, 8 Mo. 421, and decided in Haile v. Hill, 13 Mo. 613, that the probate of a will was a judicial act within the meaning of the act of congress. But in both of these cases the contest was over movable property, and the wills had been probated at the domicil of the testator ; so that those cases have no bearing upon this case. When the Kentucky court admitted this will to probate, it adjudged it to be executed according to the laws of that state, and we accept that adjudication as conclusive upon that subject; but it did not undertake to say that the will transmitted the title to the Missouri land. That court did not assume to make any such adjudication. The probate of the will then does not have the .-.credit in that state of affecting the title to land in this state, and hence we are not called upon to give it a credit here that it does not have in the courts of the state where the probate is declared. The
It follows from what has been said that in no event can this unrecorded will have any greater force and effect than an unrecorded deed, which would be constructive notice to no one. So far as defendant Johnson is concerned, James W. Keith is to be deemed to have died intestate, and the deed of trust will hold whatever interest J ames M. Keith would have as an heir at law of James W. Keith; what that interest is, does not appear.
The judgment is therefore reversed and the cause remanded to be proceeded with in accordance with this opinion.